ANALYSIS OF LEGISLATIVE GAPS AND RECOMMENDATIONShumanistburo.org/dosyalar/humdosya/Analysis...

IN THE CONTEXT OF PREVENTING CHILD LABOUR IN AGRICULTURE

ANALYSIS OF LEGISLATIVEGAPS AND RECOMMENDATIONS

IN THE CONTEXT OF PREVENTING CHILD LABOUR IN AGRICULTURE

ANALYSIS OF LEGISLATIVEGAPS AND RECOMMENDATIONS

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ANALYSIS OF LEGISLATIVE GAPS AND RECOMMENDATIONSIn the Context of Preventing Child Labour in Agriculture

This research has been carried out with financial contributions from the Matra Programme of the Embassy of the Kingdom of the Netherlands in Turkey.

This publication is public property. No permission is necessary to duplicate or quote this document in part or full.

Çankaya Mah. Üsküp Cad. No: 16/14 Çankaya - Ankara / Türkiyewww.ka.org.tr+90 (541) 457 31 90 [email protected] / kalkinmatolyesi

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Source: Sven Beckert (2018), Pamuk İmparatorluğu, Say Yayınları, İs-tanbul.

Source: mediadiversified.org/2014/01/15/cheap-labour-child-labour-part-1/childlabour3/

This report is dedicated to all children working in agri-cultural production, commemorating ten years old Ellen Hooton who gave testimony to an official commission inquiring into the employment of children in English tex-tile factories 185 years ago...

Ellen Hooton (Manchester-Wigan)

Ellen, born in 1822 in Manchester, England, was the only child of her mother, Mary Hooton, who was a single mother, trying hard to earn her living as a weaver. Ellen lived with his father, who was also a weaver, until she turned seven, then was brought to a nearby factory by her mother to contribute to family income. She received no wages for the first five months, then started to work with pay in the spinning factory where many children were employed. What makes Ellen different from the ot-her millions of workers was that she was the first child to be invited to give testimony to the Central Board of His Majesty’s Commissioners for inquiring into the emp-loyment of children in English textile factories. Ellen, only ten years old and very scared, explained what she went through as a worker with two years of experience in the cotton factory.

The invisible actors of production and development are usually not remembered anywhere. Their names and contributions remain unknown. We know about Ellen who worked under very difficult conditions, sometimes being subject to violence and punishment, and gave tes-timony to the commission about the situation of working children.

Commemorating her name, we dedicate our report to all children who contributed to agricultural production. We hope that our work will contribute to their improved access to decent opportunities and rights that enhan-ce their development, health and education, instead of working in orchards or fields.

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FOREWORD ..................................................................................................................................................................................................... 7

EXECUTIVE SUMMARY ...............................................................................................................................................................................9

INTRODUCTION ........................................................................................................................................................................................... 19

1 Scope of Legislation Review on Migrant Seasonal Agricultural Works .....................................................................22

1.1 International Legal Texts ...............................................................................................................................................................23

1.2 Domestic Law Arrangements ................................................................................................................................................... 30

2 Evaluation of Legislation on Agricultural Labour in Turkey .......................................................................................... 36

2.1 Status of Turkey as a Party to Conventions ..........................................................................................................................37

2.2 Constitutional Provisions related to Agricultural Workers ...........................................................................................40

2.3 Legal Provisions Related to Agricultural Labour .............................................................................................................. 43

3 Legislative Arrangements Relevant to Seasonal Migrant Child Workers in Agriculture .............................66

3.1 Legislative Arrangements Related to Minimum Age in Employment ..................................................................... 69

3.2 Legislative Arrangements on Working Time and Leaves ..............................................................................................78

3.3 Legislative Arrangements on Remuneration ......................................................................................................................82

3.4 Legislative Arrangements on Social Security .....................................................................................................................87

3.5 Legislative Arrangements on the Right to Organize ...................................................................................................... 92

4 Overall Evaluation and Conclusion ........................................................................................................................................... 100

4.1 Suggestions Related to Poverty, Unemployment and Demand for Cheap Labour ...........................................102

4.2Suggestions Related to Education .........................................................................................................................................102

4.3 Suggestions Related to Working Life and Workers’ Rights ........................................................................................103

REFERENCES ...............................................................................................................................................................................................105

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TABLESTable 1. ILO Conventions on Agricultural Labour that Turkey is a State Party to ........................................................................................... 5

Table 2. Recommendations and Programmes Related to Agricultural Labour ............................................................................................27

Table 3. Conventions on Employment of Children in Seasonal Migrant Agricultural Works Adopted by the

Council of Europe and UN General Assembly .........................................................................................................................................................28

Table 4. Directives and Recommendations Related to the Employment of Children in Seasonal Migrant

Agricultural Works ................................................................................................................................................................................................................29

Table 5. Laws Related to Agricultural Works Enacted after the Republic .......................................................................................................31

Table 6. Regulations and Circulars Related to Agricultural Labour Presently in Effect ..........................................................................34

Table 7. Status of Turkey as a Party to Conventions ................................................................................................................................................38

Table 8. ILO Conventions on Agricultural Labour that Turkey is Yet Not a State Party............................................................................ 40

Table 9. Provisions of 1961 and 1982 Constitutions Pertaining to the Right and Freedom to Work and Regarding the Agricultural Sector .................................................................................................................................................................................................................41

Table 10. Conventions and Laws Taking Effect in the Period 1920–1940 .........................................................................................................45

Table 11. Conventions and Laws Taking Effect in the Period 1941-1960 ........................................................................................................... 49

Table 12. Conventions and Laws Taking Effect in the Period 1961-1980 ............................................................................................................51

Table 13. Conventions and Laws Taking Effect in the Period 1981-2000 .........................................................................................................55

Table 14. Labour Code Provisions Applicable to Agricultural Workers ........................................................................................................... 60

Table 15. Conventions and Laws Taking Effect in 2001 and After...................................................................................................................... 60

Table 16. Provisions in International Conventions Related to Age in Employment .....................................................................................71

Table 17. National Legislative Arrangements Related to Minimum Age in Employment .........................................................................72

Table 18. National Legislative Arrangements on Minimim Age in Employment in Agriculture and Animal Husbandry ..............73

Table 19. Comparison of Legislative Arrangements on Minimum Age in Employment ............................................................................75

Table 20. Legislative Arrangements on Working Time and Leaves ...................................................................................................................81

Table 21. Scope of Social Security according to the Convention No.102 on Social Security (Minimum Standards) .....................88

Table 22. Share of Persons with Social Security Coverage in Agriculture in Total Number of Insured People (2016) ..................91

Table 23. Social Security Status of Self-Employed Persons and Workers in Agriculture

(work for indefinite period and voluntary insurance) .............................................................................................................................................93

Table 24. Summary of Social Security Status of Self-Employed in Agriculture in Some EU Countries .............................................93

ACRONYMS

EU ..............European Union

GNP ..........Gross National Product

FRS ...........Farmer Registration System

ILO .............International Labour Organization

IMF ............International Monetary Fund

IPEC ..........International Programme on the Elimination of Child Labour

MoNE .......Ministry of National Education

TBMM .......Grand National Assembly of Turkey

TÜİK ..........Turkish Statistical Institute

UN .............United Nations

US ..............United States of America

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preventing child labour in seasonal migrant agricultu-ral works. The present report titled “Analysis of Legis-lative Gaps and Recommendations in the Context of Preventing Child Labour in Agriculture” is one of the three that are prepared in line with project objectives.

We are indebted to representatives of government institutions, academics and civil society organizations who contributed to the report on Analysis of Legis-lative Gaps and Recommendations in the Context of Preventing Child Labour in Agriculture by sharing their knowledge and experience and for their feedback in the meetings held in Adana and Ordu provinces du-ring which research findings were presented.

We maintain our hopes that outcomes of the survey will contribute to the improvement of lives of children together with our hope that decent work conditions will soon be in place. We wish we can realize our ho-pes together for all working people, children in the first place.

Development Workshop

July 2018

Ankara

The Development Workshop has since 2002 been conducting baseline studies on children working in seasonal agriculture on the basis of crops and locati-ons; sharing data and information obtained from the-se studies with governmental agencies, civil society organizations, professional organizations, internatio-nal agencies, the media, private sector firms and UN agencies; and using all available platforms to advo-cate for reducing and ultimately eliminating the num-ber of children working in seasonal agriculture, which is considered as one of the worst forms of child labour, and improving their working and living conditions.

To obtain information in this context, the Development Workshop attaches importance and priority as far as possible to areas and issues where there are gaps and conducts various studies and surveys to fill these gaps. One of these important gaps has been identified as the lack of compilation and analysis of national legis-lation on agricultural employment and employment of children in seasonal migrant agriculture in comparison with international norms and in terms of their adequ-acy in preventing the child labour in seasonal migrant employment in agriculture in Turkey.

The present project supported by the Embassy of Net-herlands aims at investigating risks that migrant child workers face in citrus fruit, cotton and hazelnut culture due to their working and living conditions and evalu-ating existing legislation and institutional capacity in

FOREWORD

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Prevention of Child Labour in Seasonal Agriculture” implemented by the Development Workshop with the financial support of the Embassy of Netherlan-ds (September 2017 – August 2018) aims to identify legal and institutional gaps in efforts to prevent child labour in seasonal agriculture in Turkey as well as measures that must be adopted in the light of risks that child workers face.

The objective of this report, prepared in the con-text of the above mentioned Project, is to assess the compatibility of national and international legislation related to the employment of children in agriculture and to identify legislative gaps that lead to the emp-loyment of children in forms that contradict with the relevant international standards. The report covers international conventions of which Turkey is a State Party, directly or indirectly related to agricultural ac-tivities as well as national legislations.

Legislation on Agricultural Labour

We see that first official arrangements in Turkey re-lated to employment relations date back to Mecelle (Ottoman civil code) before the Republic and vari-ous statutes on implementation. Although the steps to introduce a legislative framework to employment relations started from the early years of the Republic, the process spread over a rather long period.

The first arrangement related to employment relati-ons is the Law No. 394 on Weekly Rest (1924). The Law on Weekly Rest, however, covered settlements

168 million children in the age group 5-17 globally, 11 percent of total child population, are working as child labourers throughout the world. 50 percent (85 milli-on) of these children are in works that threaten their health, safety and development. Sector wise, agricul-ture stands as the one, which employs 59 per cent of working children.1

According to 2012 data, there are 893,000 children in the age group 6-17 who are working. This correspon-ds to 5.9 per cent of all children in that age group and to 15.6 per cent of children in the age group 15-17. 52.6 per cent of children are wage earners while 46.2 per cent are unpaid family workers. Of all working child-ren 44.7 per cent (399,000) are in agriculture.2

Employment of children under age 15 is prohibited by the Labour Code No. 4857 presently in effect in Turkey. Children in the age interval 15-18 can be emp-loyed given that this employment does not interfere with their education and that their health and safety is fully secured. Since these conditions are not met, seasonal migrant labour in agriculture is defined as ‘one of the worst forms of child labour’ and the mini-mum age for admission to employment in this sector was set as 18.

However, as outlined above, child labour still persists in many sectors and agriculture is still the sector where child labour is observed most commonly. One of the major factors leading to this situation is the ineffectiveness of the existing legislation in preven-ting child labour in agriculture. In this context, the “Project for Reducing Legal and Institutional Gaps in

EXECUTIVE SUMMARY

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The Law on Paid Leave for Workers on Weekends and General Holidays was adopted in 1951. In the 14 years that followed 1946, 13 more ILO conventions were ra-tified by Turkey. These were important conventions related to employment agencies, right to organize and collective bargaining, prohibition of forced la-bour and minimum age in some trades.

The 1961 Constitution envisages the protection of agriculture and farmers for adequate nutrition of pe-ople and increase in agricultural output to the bene-fit of society as whole. It requires the “adoption of necessary measures to value the labour of” people engaged in agriculture as a part of this responsibi-lity. Despite, there were two initiatives, in 1964 and in 1978, to draft a special labour code for agriculture, but they were not finalized and enacted.

Under the title “Provisions Related to Employment”, the 1961 Constitution safeguarded many rights in working life including the right to work, prohibition of drudgery, right to rest, fair remuneration, right to organize, collective bargaining and strike and the ri-ght to social security. Constitutional guarantee for the right to work was provided for the first time in Turkey with the Constitution of 1961. This was fol-lowed by the taking effect of the Law on Trade Uni-ons in 1963.

Besides the Trade Union Law, the Laws on Primary Education and Education and the Social Security Law which had indirect relevance to working age and employment of children took effect during the early years of this period. It was followed by the ratification of the ILO Convention No. 100 on Equ-al Remuneration in 1966. In the period of 10 years from 1966 to 1976, 10 ILO Conventions were ratified. In 1967, The Labour Code No. 931 was adopted, but later annulled by the Constitutional Court. A new Labour Code adopted in 1971 took effect. It was fol-lowed by the Law on Agricultural and Land Reform taking effect in 1973.

Differing from the earlier Constitution, the 1982 Cons-titution is not interested in the labour of the farmer; it adopts as a principle that farmer’s product should

with population of 10,000 or more, thus leaving out rural areas where agricultural labour was mainly pre-sent. Following this law, the Law No. 2739 on Natio-nal Holidays and General Vacation Days took effect in 1925.

The Code of Obligations No. 818 which took effect in 1926 is the first legislative act concerning all wor-kers including those in agriculture. However, the code had no specific arrangements related to agricultural works. Yet, a significant part of population in this pe-riod was in that sector.

The Public Health Law No. 1593 taking effect in 1930 is the first law in Turkey concerning safety and health status of workers in industry and trade.

In 1936, the first Labour Code (No. 3008) was adop-ted. However, these laws do not cover people wor-king in agriculture neither and in industry they are limited to enterprises employing at least 10 workers.

The Convention No. 45 on Underground Work (Wo-men) was signed, ratified and given effect as one of the 11 conventions adopted after 1936 when Turkey became a full ILO member.

The Law on Associations taking effect in 1938 is the first legislation providing for the right to organize.

The National Protection Law No. 3780, taking effect in 1940, prevented the implementation of the provisi-ons of the Labour Code No. 3008 until 1960. This law was repealed in 1960.

The Law on Provision of Land to Farmers adopted in 1945 is significant in that it aimed to support landless peasants and farmers with tiny plots and to eliminate extreme unfairness in land distribution. The law un-derwent many changes until the year 1973 and it was eventually diverted from its original purpose.

In 1946, the Law on the Establishment and Duties of the Ministry of Labour took effect. It is also the year when the ILO Convention No. 14 on Weekly Rest (In-dustry) which was adopted in 1921 took effect in Tur-key.

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tion to democratic regime began, first the European Social Charter which was signed in 1961 was ratified and given effect. In the period of 10 years from 1989 to 1998, 12 ILO and one UN convention were adopted and ratified. Among these the following were direct-ly related to child labour: The UN Convention on the Rights of the Child, Convention No. 123 on Minimum Age (Underground Work), Convention no. 59 on Mi-nimum Age (Industry-Revised), Convention No. 130 on Minimum Age in Admission to Employment and Convention No. 138 Concerning Minimum Age for Admission to Employment.

The most important commitment of the 7th Develop-ment Plan, prepared in this period, concerning wor-kers is that “Agricultural Labour Code will be enacted for wage earners in agriculture”6 , but this commit-ment is not fulfilled.

The adoption of the Unemployment Insurance Law in 1999, at the end of the period was a development to the interest of workers; yet, there is no possibility of actually implementing this law with respect to both self-employed and agricultural workers.

It is also the period when Turkey was engaged in EU accession negotiations. In line with the atmosphere of this process first the Labour Code No. 4857 took effect in 2003 and many regulations were issued.

While agricultural enterprises employing 51 and more workers will be regulated by the Labour Code (No. 4857), others employing less than 50 will be subject to the Code of Obligations (No. 6098). The Labour Code also makes a distinction between temporary and continual work and envisages the application of the Code of Obligations in the former. But there is an exception to this rule. Those provisions of the Labour Code relating to such fundamental rights as working periods, minimum age in employment, pro-hibitions on child employment, paid weekly rest and other paid leaves are to be applicable to “temporary works” as well. Further, there is no distinction of tem-porary and continual works when it comes to ins-

be accorded its value, but makes no suggestion as to ways of realizing this.

In the years following the adoption of the Constitu-tion, firstly the Trade Union Law and the Law on Col-lective Bargaining, Strike and Lockout were amended and with the Trade Union Law adopted in 1983 agri-cultural workers were recognized as ‘worker’ in terms of their collective rights which differs from the La-bour Code.3 This recognition, however, did not mean much in practice.

Two legislative acts related to social security cove-rage were adopted in 1983: The Law on Social Se-curity of Agricultural Workers covering those emp-loyed on the basis of service contract and the Law on Social Security of Self-Employed in Agriculture covering those without any service contract with any employer.

The Law No. 3308 on Vocational Education that is related to child labour was adopted in 1986. This law which was amended 12 times up to 2017 covers vo-cational and technical education and training scho-ols and institutions. Practices of vocational training in agricultural started in 1887 with the School of Agriculture, it continued with agricultural vocational high schools under the Ministry of Agriculture until 2006, and finally these schools whose number was already reduced were transferred to the Ministry of National Education in 2006.4 Upon the Council of Mi-nisters decision No. 2005/139 in 2005, the name of Directorates of Agricultural Vocational High Schools was changed as “Directorate of Centre of Agricultural Extension and In-service Training” before becoming “Vocational High Schools of Agricultural Techno-logies” after 2016. Presently these institutions deli-ver training in industrial fruit and vegetable culture, decorative plants and landscape, agricultural instru-ments and machinery and crop farming.5

After 1980, during the rule of the military regime the-re was a halt in the process of acceding to internatio-nal treaties and legislation making; and when transi-

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on, in jobs that will not prevent their school atten-dance. What can be considered as light works are provided by the relevant regulation.

The Regulation on Procedures and Principles Rela-ting to the Employment of Child and Young Workers and its annexes which is based on the Labour Code No. 4857 introduces three categories in the context of works that children may be employed after age 14. According to this arrangement, works in which children can be employed in agriculture and animal husbandry vary with respect to ages of 14, 15 and 16.

ILO Convention No. 182 Concerning the Prohibiti-on and Immediate Action for the Elimination of the Worst Forms of Child Labour, on the other hand, co-vers areas of work that are harmful to children in all circumstances. Turkey identified seasonal migrant agricultural works as the worst form of child labour. As the Convention constitutes a domestic law norm according to Constitutional Article 90, the minimum age for employment in seasonal migrant agricultural works in Turkey is 18.

However, studies show that 70 per cent of local and 73 per cent of migrant agricultural workers started this work before age 15.7 A survey conducted in Çu-kurova reports that children as young as 10 can be found in crop fields8:

“While 7 per cent of children in the age group 6-10 actually work in crop fields, it increases to 52 per cent of boys and 60 per cent of girls in the age group 11-14. In the age group 15-18, 91 per cent of children are out in fields working that is 9 out of each 10 adolescents are working.”

Working Time and Leaves

According to the Directive 94/33/EC on the Protec-tion of Young People at Work, working time of child-ren at age 15 can be 8 hours a day, 40 hours a week and, if not prohibited by domestic legislation, daily 2 hours and weekly 12 hours out of school time. When schools are closed it is daily 7 hours and weekly 35 hours for children who are not subject to compulsory

pections to be conducted on enterprises operating under the Labour Code. Therefore, although seasonal agricultural works are considered as temporary, agri-cultural enterprises employing 51 or more workers are subject to labour inspection. The remaining falls in the jurisdiction of the Code of Obligations when breach of contract provisions occurs. In addition to this duality with respect to the main roof there are also arrangements in more than one legislative text in matters such as prohibition of employment and minimum age. Moreover, some of these legislative acts are not essentially related to employment such as the Law on Public Health and Law on Police Duties and Authorities. This scattered nature of the legisla-tion makes both identifying the principle and inspec-ting compliance difficult.

Legislative Arrangements Relevant to Seasonal Migrant Child Workers in Agriculture

Minimum Age in Employment

The ILO Convention No. 138 Concerning Minimum Age for Admission to Employment requires that mi-nimum age set by States Parties should coincide with the age that compulsory education ends and, in any case, not below age 15. The Turkish Labour Code No. 4857 also prohibits the employment of children who have not completed age 15. However, this rule has two exceptions in regard to age:

1) Children who have not completed age 14 of fourteen may be employed in the artistic, cultu-ral and advertising activities that will not hinder their physical, mental and moral development and that will not prevent their school attendan-ce, on condition that a written contract is ente-red and permission is obtained for each activity separately.

2) Children who have completed age 14 and the-ir primary education on light works that will not hinder their physical, mental and moral develop-ment, and for those who continue their educati-

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Domestic law provisions related to working time and the right to paid leave are, generally, in compliance with international conventions. However, it is so as it is stated in legislation, on paper. As a matter of fact, surveys conducted suggest that daily working hours in seasonal agricultural works are no shorter than 9-10 hours on average and in some cases it may even ex-ceed 10 hours.9 Seasonal migrant agricultural workers and their children work at any time and any place where they find job without any entitlement to annual leave, weekly rest or holiday. The period of working is one of the reasons why seasonal migrant agricultural works constitute one of the worst forms of child la-bour.

Remuneration

According to the European Social Charter, all workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their fa-milies. Fair remuneration in this context has to: (1) 1) Provide workers and their families decent standards of life; 2) Pay more in cases of overtime work; 3) Pay equally to both men and women for work of equal va-lue; 4) Provide employment security (prohibition of employment termination without notification); 5) Gu-arantee no deduction from wages (other than in cases prescribed by law as fixed by collective agreement).

The UN Covenant on Economic, Social and Cultural Rights also mentions similar criteria. States Parties to the ILO Convention on Fixing Minimum Wage in Agriculture also commit to introduce procedures that allow fixing of minimum wage rates in agricultural works and to maintain such procedures.

Regarding national arrangements on remuneration, a single minimum wage is set for all sectors and workers whether covered by the Labour Code or not under the Minimum Wage Regulation since 1 August 1989. According to the same regulation, it is possible to set different minimum wages for child and adult workers, but this was removed on 1 January 2014 and a sing-le minimum wage regardless of age is in effect since then.

education. For each 24-hour period children are en-titled to a rest period of 14 hours (it is 12 hours for adolescents).

The Directive prohibits work by children from 8 p.m. to 6 a.m. except for vocational training and cultural activities. For adolescents over age 15 it is forbid-den to work from 10 p.m. to 6 a.m. The Directive also stipulates that when daily work exceeds 4.5 hours children are entitled to take a rest for 30 minutes. Children under age 14 must have 14 and adolescents must have 12 consecutive hours of rest for each 24 hours.

As to leaves, paragraph 7/Article 7 of the European Social Charter envisages “at least three weeks of lea-ve in a year to working persons under age 18.”

According the national legislation, the daily working time can be maximum 8 hours for children over age 12 and under age 16 according to the Law on Public Health.

According to the Labour Code, on the other hand, it is daily 7 hours and weekly 35 hours in case of children over 14 but under 15; and daily 8 hours and weekly 40 hours in case of children between age 16 and 18.

As per the Regulation on Principles and Procedu-res Relating to the Employment of Child and Young Workers, child workers are entitled to 14 consecutive hours of rest following a work day and at least 1 hour of rest break during the day. Weekly rest period is at least 48 hours for children. Children and adolescents under age 18 cannot be employed in any kind of night work.

In agricultural enterprises employing less than 50 wor-kers, provisions of the Code of Obligations related to service contract are applied. The Code of Obligations does not provide for working period, but provides for the right to weekly rest. Both the Code of Obligations and the Labour Code adopt the principle that workers should be entitled to at least one day of fully paid le-ave in a week.

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According to a survey which compared the cases of permanent (typical) and a-typical workers in priva-te sector on the basis of gender and sectors, 63 per cent of males and 92 percent of females employed on daily wage basis earn less than half of minimum wage; and 32 per cent of males and 8 percent of fe-males earn between half the minimum wage and mi-nimum wage.11

Social Security

According to the European Social Charter, all workers and their dependents have the right to social security. In this context, States are obliged to establish a social security system first, give effect to the ILO Conventi-on No. 102 on Social Security (Minimum Standards), to further develop this system and cooperate with other States Parties in this field by acting appropri-ate bilateral agreements. The Charter recognizes the right to medical and social assistance of those who cannot benefit from the social security system.

Turkey is a State Party to Convention No. 102 on So-cial Security (Minimum Standards). According to this convention which was ratified in 1971 social security system must cover sickness, pregnancy, maternity, unemployment, old-age, invalidity, family, work acci-dent and death benefits and periodic payments.

This right is also enshrined in the UN Covenant on Economic, Social and Cultural Rights in a manner to cover the right to social security as well (Art.9). The covenant also envisages special protection in cases of maternity.

In national legislation, the Law No. 2925 on Social Security of Agricultural Workers aims to “… ensure the social security of persons employed temporarily in agricultural works on the basis of service contract with the provisions of the present law”. It is a soci-al security arrangement relating directly to seasonal agricultural workers. The law envisages the soci-al security coverage of workers in agriculture upon their request but not those under age 18. The law introduces entitlement to retirement at age 50 for

According to the Code of Obligations, on the other hand, the employer is obliged to pay his employee the amount specified in the contract or in collective agreement or, in case there is no relevant provision, an equivalent amount which cannot be less than the minimum wage. In cases of overtime work, the emp-loyer is also obliged to pay 50 per cent of the regular wage.

There is no uniform contract in agricultural produ-ction. Families engaged in seasonal migrant agri-cultural works are employed on the basis of oral or written contracts that may entail different wage rates for different crops. The most commonly known and used form is daily wage although one can frequently observe different modes such as lump-sum (kabala) payment and sharecropping on the basis of varying percentages.

In daily wage system wage is the payment made to a worker on his daily work. In other systems, however, work is undertaken by the family and since children work as a part of family their specific daily remunera-tion cannot be determined.

In practice, daily or other wage rates applicable in seasonal hoeing, weeding and harvesting works are determined by seasonal commissions established at province-district level, chambers of agriculture, union of exporters and in some regions by informal commissions formed by local headmen. The method used in determining daily wage is dividing minimum wage by 30. Still, there is neither clarity in this; it is observed that calculation is made on net minimum wage in some cases and gross wage in others.

TÜİK data too confirm that there is no clarity as to the calculation of daily wage. For the year 2017 the average daily wage of seasonal agricultural workers was 66 TL, and the monthly earning of permanent agricultural workers was 1,857.00TL. Given these fi-gures, a seasonal agricultural worker has to work 28 days a month to earn as much as permanent agricul-tural workers in case there is no deduction from his daily wage.10

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remaining out of the scope of the Labour Code (workers in enterprises employing less than 50 workers), persons in worker status under the Code of Obligations too can be union members and es-tablish unions. In case a union is established in agri-culture, this union must have members correspon-ding to at least 1 per cent of all workers in the sector to have the right to collective agreement.15 Due to the characteristics of this sector, however, there are significant obstacles against organization even if legislative framework is fit for.

Seasonal migrant agricultural workers find jobs mostly through agricultural middlemen. The calen-dar and the kind of works that the former will enga-ge will do depend on middlemen’s connections or connections they seek. Their working period may be as short as one day in some cases or may take days while climate changes may also prevent them from finding jobs. Different types of remuneration, for example share-cropping or lump-sum payment may place workers in contractor or sub-contractor positions before land/orchard owners. Competition in finding job which has become harder with the recent addition of foreign migrants to agricultural labour market, low levels of education, and need to move fast to different locations for different crops are the factors impeding the organization of wor-kers. Other obstacles include weak demand by agricultural supply firms for decent work and ab-sence of any demand for the implementation of na-tional and international legislation in supply chains.

Meanwhile it is positive that the Law No. 6356 on Trade Unions and Collective Bargaining brings no limitation to children’s membership to trade unions. But there is no mention of children’s union mem-bership since unionization is very weak in this sec-tor anyway. So it is not possible to speak about any factual positive impact of this legislation on child labour.

women and at 55 for men given that their social se-curity contributions are made for 180 days a year, not to be shorter than 15 days a month, and that 3,600 work days are fully completed. The Unemployment Insurance Law adopted in 199912 however, lifter these ages up to 58 for women and 60 for men. Then, the Law No. 5510 on Social Security and General Health Insurance repealed “general provisions included in articles 1 to 5, provisions on sickness benefits inclu-ded in articles 13 to 17, article 24 envisaging lump-sum payment of old-age insurance, article 33 on contribu-tions and article 35 on the dependents of the insured person in the Law No. 2925 dated 17/10/1983 on So-cial Security of Agricultural Workers” (Art.106/6) and consequently it became no longer easy for agricultu-ral workers to be insured.13

The form of employment of seasonal migrant agri-cultural workers who are the poorest and most dep-rived segment of the country or of their hometown perpetuates poverty in a vicious circle. One of the re-levant factors is their exclusion from social protection systems.

While about 1/5 of working people are in agriculture, only 3 per cent of insured are in this sector.14 These figures clearly indicate that existing legislative arran-gements are insufficient in ensuring social security in agriculture. As far as children are concerned there is neither social security nor unemployment benefits.

Right to Organize

According to the UN Covenant on Economic, Social and Cultural Rights, everyone has the right to form trade unions and join the trade union of his choice for the promotion and protection of his economic and social interests

Under the Trade Union and Collective Bargaining Law No. 6356 which took effect in 2012 any per-son over age 15 and considered as worker under the relevant legislation, can be a union member. Since this law was designed so as to cover those workers

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Therefore, priority actions should be;

Amending Article 55 of the Turkish Constitution so as to recognize the protection of the value of labour and income guarantee as a right.

And as corollary;

Modifying Article 39 in the Labour Code. By using criteria set in the European Social Charter, a prin-ciple must be adopted to raise minimum wage up to a minimum decent living standard.

Recommendations Related to Education

Factors such as low school performance, unemploy-ment as a common phenomenon even for relatively educated population and tolerance shown to non-at-tendance to school by children of seasonal agricultural workers16 weaken the ties of children with their scho-ols. A survey found that school days missed by child-ren of seasonal migrant agricultural workers vary from 6-51 to 67 days in a school year.17 According to another survey 50 per cent of children engaged in economic activities are out of school.18 18 As to supportive acti-vities initiated for children when their family elders are out in work, their availability is limited in terms of both time and space and not as inclusive as they should be.

The system of education must be capable of identif-ying factors that push children out of the system and making necessary interventions. The existing legisla-tion on following children’s school attendance19 is not effective in eliminating the problem of poor attendan-ce. Mainly, it is not of that nature to allow for interven-tions to eliminate the causes of poor attendance.

Hence;

There is need to amend article 52 and subsequent articles of the Law on Primary Education and Edu-cation so as to allow for the intervention of social services in order to investigate the causes of poor school attendance and to improve family skills ne-eded to eliminate this problem.

Quality of education must be such that it strengthens the ties with school and learning of children in ge-

Overall Evaluation and Conclusion

Turkey followed the activities of the International La-bour Organization from the early years on and beca-me a State Party to many of its conventions. Some of these conventions are also transposed into domestic law. However, legislative arrangements pertaining to agriculture are far from safeguarding the rights of persons working in this sector. Yet, agriculture stands as a sector where the exploitation of child labour is the most common.

Especially within the last 40 years many internatio-nal documents, action plans and projects have been drafted, developed and implemented to combat child labour including its worst form and to allevia-te poverty as its root cause. Unfortunately, desired outcomes and improvements could not be obtained.

Combat against the exploitation of child labour requ-ires sincere political will to eliminate its root causes. Suggestions in this context can be summarized in th-ree headings:

Recommendations Related to Poverty, Unemploy-ment and Demand for Cheap Labour

Besides the poverty in general, agricultural workers in particular and small farmers constitute the most impoverished section of the society and this cycle of poverty cannot be broken even in full-time work. Gi-ven this, the first thing to be questioned is the system that works on the basis of cheap labour and arrange-ments supplementing this system.

The poverty of those working in agriculture stems from the fact that profits accruing from agricultural products go to some other hands. While value crea-ted by a mechanism operating against small farmers and agricultural workers goes to the trader as profit, it is impossible to keep children out of working life as their parents have to work and subsist on an income below poverty line and in some cases close to star-vation line.

17

the rights of their parents to wage, working perio-ds, leaves, etc. Until the enactment of this law, the rights and benefits of agricultural workers such as working periods, leaves, additional payments and bonuses must be provided for by amending article 393 and other relevant articles in the Code of Obligations.

The system of social protection in agricultu-re must be strengthened. Short-term contracts must be accepted as fixed-term contracts and the scope of family benefits must be expanded so as to provide a sufficient standard of living including children’s education and other expenses.20 To ensure this, the additional article 5 in in the Social Security and General Health Insurance Law No. 5510 and the Law No. 2925 on Social Security of Agricultural Workers must be amended. In doing this, there is need to develop a model that takes account of agricultural production processes and to safeguard it with necessary legislative arran-gement to cover workers in social security. Also needed is the possibility paying wages by met-hods such as bank and payment vouchers and including social security contributions in wages.

The condition of employing at least 50 workers existing in article 4 of the Labour Code must be removed to include agriculture in the inspection domain of labour inspectors. There must be ar-rangements allowing for regular and upon-comp-laint inspections.

The condition of representing a specific percen-tage of workers in the same trade must be remo-ved for facilitating the unionization of agricultural workers by introducing amendments to the Law No. 6356 on Trade Unions and Collective Bargai-ning.

A study should be conducted on production mo-dalities and the distribution of the profit along the production chain and it should be ensured that small farmers and agricultural workers are entit-led to the value of their labour through enact-ment of an Agricultural Labour Code.

neral and particularly those facing attendance and performance problems and quality education must be accessible to all children. It is therefore a problem of policy and implementation before any legislation.

In this context;

It is necessary to include a special section in the Fundamental Law on National Education for int-roducing mobile schools to which children of agricultural workers can attend, developing catch up education programmes for children who have missed school years and implementing alternati-ve programmes to develop and improve learning skills of children.

Recommendations Related to Working Life and Workers’ Rights

The reservations to the Art. 2, 4, 5, 6, 7, 22 and 23 of the revised European Social Charter should be removed and the Collective Complaints Pro-cedure dated 1995 that entitles the unions and civil society organizations the right to collective complaints should be ratified.

Turkey must be a State Party, first of all, to the Convention No. 10 on Minimum Age in Agriculture dated 31 August 1923 and then to the Convention No. 101 on Paid Leave in Agriculture dated 4 July 1952, Convention No. 129 on Work Inspection in Agriculture dated 25 June 1969 and Convention No. 184 on Health and Safety in Agriculture dated 5 June 2001.

Given that employment in seasonal migrant agri-cultural works is considered as one of the worst forms of child labour, necessary amendments must be made in both Article 71 of the Labour Code and in the Regulation on Procedures and Principles Relating to the Employment of Child-ren and Young Workers to set the minimum age as 18 in this branch.

An Agricultural Labour Code must be drafted to address, in an integrated manner, all relevant is-sues including the prevention of child labour and

18

Notes

1 Marking Progress Against Child Labour: Global Estimates and Trends 2000-2012. (2013). ILO, sf.7www.ilo.org/wcmsp5/groups/public/@ed_norm/@ipec/documents/publication/wcms_221513.pdf2 TUİK Çocuk İşgücü Anketi 2012 Haber Bülteni, s.13659 (02.04.2013) http://www.tuik.gov.tr/PreHaberBultenleri.do?id=136593 Işık, R. (1971). Türkiye’de Tarım Sektöründe Sendikacılık Hareketleri. Tarımsal İşgücü Sorunları Semineri’nde sunulan tebliğ, sf. 3. dergiler.ankara.edu.tr/dergiler/38/322/3188.pdf4 www.tarim.com.tr/Tarim-Liseleri-Gelecegin-Tarim-ve-Ziraat-Muhendislerini-Yetistirmeyi-Hedefliyor,38552h5 www.mesleklisesi.net/meslekbolumleri/index.php/topic,677.0.html?PHPSESSID=fb8hmo2gvmmehdu6o4fpgod3f46 7. Beş Yıllık Kalkınma Planı, sf. 567 turkiyedecocuklar.org/#hangi-sektorde-calisiyorlar8 Uyan, S., Erdoğan, E. (2017) Adana’da (Mevsimlik Gezici) Tarım İşçilerinin Çocuklarının Yaşam Koşullarının İyi Olma Hali Perspek-tifinden İyileştirilmesi Projesi Araştırma Sonuçları Özeti, Politika Alanları ve Uygulama Önerileri. İstanbul, sf.11www.bilgi.edu.tr/site_media/uploads/files/2017/03/29/goc-merkezi_adana-da-mevsimlik-gezici-tar-m-ilerinin-ocuklar-o-zet-rapor.pdf9 Mevsimlik Tarım Göçünden Etkilenen 6-14 Yaş Grubu Çocuklar İçin Temel Araştırma. (2013). Kalkınma Atölyesi (2. Baskı), sf.4010 TÜİK Haber Bülteni, 14.03.2018, Sayı: 2770611 Karadeniz, O. (2011). Türkiye’de Atipik Çalışan Kadınlar ve Yaygın Sosyal Güvencesizlik. Çalışma ve Toplum Dergisi, 2, sf.8312 25.08.1999 t. 4447 sayılı Kanun md. 56 (RG 08.09.1999 – 23810)13 Gülçubuk, B. (2012). Tarımda Çocuk Emeği Sömürüsü ve Toplumsal Duyarlılık. Çalışma ve Toplum 22(2), sf.8814 SGK İşyeri ve Sigortalılık İstatistikleri 201615 Yasa 2012 yılında yürürlüğe girdiğinde bu oran yüzde 3 olarak belirlenmişken, 10/9/2014 tarihli ve 6552 sayılı kanunun 20 nci maddesiyle yüzde 1 olarak değiştirilmiştir.16 Kablay, S. (2015). Mevsimlik ve Gezici – Geçici Çalışma: Çocuk İşçiler. Derleyen: Yücesan Özdemir, G. Rüzgara Karşı / Emek Sü-reçleri ve Karşı Hegemonya Arayışları. Ankara: Nota Bene Yayınları, sf.9717 Mevsimlik Tarım Göçünden Etkilenen 6-14 Yaş Grubu Çocuklar İçin Temel Araştırma. (2013). Kalkınma Atölyesi (2. Baskı), sf.4418 Dünyada, Türkiye’de ve Adana’da Çocuk İşçiliği: Nedir? Nasıl Çözülür? (2014). Adana, sf. 1419 05.01.1961 tarih ve 222 sayılı İlköğretim ve Eğitim Kanunu md. 52 vd.20 Mevsimlik Tarım İşçiliği Çocuklar: Sorun Analizi ve Politika Önerileri. (2013). Ankara, sf.28

19

workers, the number of working children is quite high and it can even amount to 1/3 of labour force in some activities.

Seasonal migrant labour in agriculture is a form of wage labour in this sector, which requires families who seek employment to move from their original settlements to where agricultural production takes place in its various stages. Since families move with all their members, children also take part in this pro-cess as wage workers. Household income increases as families include more of their members in their work. Hence, child labour remains as an important item in family subsistence.

In particular, children in the age group 12-17 work in seasonal agriculture and move to other places with other family members. According to the survey con-ducted by the Support to Life Association (2014) with 168 seasonal migrant households, which provi-des data for 1,353 individuals, 35 per cent of children in the age group 5-11, 78 per cent in the age group 12-15, and 85 per cent of children in the age group 16-18 take part in agricultural works.5

Similarly, the Development Workshop survey condu-cted with seasonal migrant families travelling to Wes-tern Black Sea region for hazelnut harvesting (2014) indicates that 73 per cent of household members un-der age 18 (329 out of 451 children) takes part in ha-zelnut harvesting.6

According to the report “Global Estimates and Tren-ds 2000–2012” published in 2013 by the International Labour Organization under of the International Prog-ram on the Elimination of Child Labour (IPEC),1 168 million children in the age group 5-17, 11 percent of total child population, are working as child labourers throughout the world. 50 percent (85 million) of the-se children are in works that threaten their health, sa-fety and development. Sector wise, agriculture stan-ds as the one, which employs 59 per cent of working children.

The Turkish Statistical Institute (TÜİK) released the latest data about child labour in Turkey in 2012. According to 2012 Child Labour Survey data, the-re are 893,000 children in the age group 6-17 who are working. This corresponds to 5.9 per cent of all children in that age group and to 15.6 per cent of children in the age group 15-17. 52.6 per cent of children are wage earners while 46.2 per cent are unpaid family workers. Of all working children 44.7 per cent (399,000) are in agriculture.2

The US Department of Labour’s Bureau of Interna-tional Affairs annually publishes sectors that count-ries employ children. According to the list published in 20153 children in Turkey are commonly employed in citrus fruit, cotton, tobacco, cumin and hazelnut culture. Recent field surveys also reveal that child employment in agriculture is a common phenome-non.4 Especially among seasonal migrant agricultural

INTRODUCTION

20

In order to realize such a study, two localities and th-ree crops in which children are most commonly emp-loyed as seasonal migrant workers were identified. Accordingly, the project was carried out in Ordu and Adana provinces focusing on the harvest of hazelnut, cotton and citrus fruit.

Three reports were prepared in line with the objecti-ves of the project:

Report on Legal Gap Analysis and Recommenda-tions

Report on Institutional Gap Analysis and Recom-mendations

Report on Risks faced by Children Working in Cit-rus Fruit, Cotton and Hazelnut Harvesting

The objective of this report, which is one of the above three, is to assess the compatibility of national and international legislation related to the employment of children in agriculture and to identify legislative gaps that lead to the employment of children in forms that contradict with the relevant international standards. The report covers international conventions of which Turkey is a State Party, directly or indirectly related to agricultural activities as well as national legislations. To serve as an indicator, the report also presents a list of international conventions also related to this sec-tor but to which Turkey has not yet acceded.

Employment of children under age 15 is prohibited by the Labour Code No. 4857 presently in effect in Turkey. Children in the age interval 15-18 can be emp-loyed given that this employment does not interfere with their education and that their health and safety is fully secured. Since these conditions are not met, seasonal migrant labour in agriculture is defined as ‘one of the worst forms of child labour’ and upon Tur-key’s accession in 2001 to the ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, the minimum age for admission to employment in this sector was set as 18.

However, as outlined above, child labour still persists in many sectors and agriculture is still the sector where child labour is observed most commonly. The major factors leading to this situation can be listed as follows:

Existing legislation remains ineffective in preven-ting child labour.

Authorities in charge of preventing child labour cannot fully perform their functions.

Overcoming some cultural norms and traditional practices poses extra difficulties since risks faced by children working in agriculture is not properly analysed (by age groups and crops).

In this context, the “Project for Reducing Legal and Institutional Gaps in Prevention of Child Labour in Seasonal Agriculture” implemented by the Deve-lopment Workshop with the financial support of the Embassy of Netherlands (September 2017 – August 2018) aims to identify legal and institutional gaps in efforts to prevent child labour in seasonal agriculture in Turkey as well as measures that must be adopted in the light of risks that child workers face.

21

Notes

1 Marking Progress Against Child Labour: Global Estimates and Trends 2000-2012. (2013). ILO, sf.7www.ilo.org/wcmsp5/groups/public/@ed_norm/@ipec/documents/publication/wcms_221513.pdf2 TUİK Çocuk İşgücü Anketi 2012 Haber Bülteni, s.13659 (02.04.2013) www.tuik.gov.tr/PreHaberBultenleri.do?id=136593 Findings on the Worst Forms of Child Labor. (2015). United States Department of Labor, Bureau of International Labor Affairs.4 - Mevsimlik Gezici Tarım İşçiliği Araştırma Raporu. (2014). Hayata Destek Derneği.

- Yoksulluk Nöbetinden Yoksulların Rekabetine: Yabancı Göçmen İşçiler Mevcut Durum Raporu. (2016). Kalkınma Atölyesi.

- Bereketli Topraklar Zehir Gibi Yaşamlar: Suriyeli Göçmen Mevsimlik Gezici Tarım İşçileri Adana Ovası Mevcut Durum Araştırma Raporu. (2016). Kalkınma Atölyesi.

- Fındık Hasadının Oyuncuları: Batı Karadeniz İllerinde Fındık Hasadında Yer Alan Mevsimlik Gezici Tarım İşçileri, Çocuklar, Tarım Aracıları ve Bahçe Sahipleri Temel Araştırması. (2014). Kalkınma Atölyesi.

- Tarımda Mevsimlik İşçi Göçü Türkiye Durum Özeti. (2012). Mevsimlik İşçi Göçü İletişim Ağı (MIGA), Friedrich Ebert Stiftung, İstanbul.

- Mevsimlik Tarım İşçilerinin Sorunlarının Araştırılarak Alınması Gereken Önlemlerin Belirlenmesi Amacıyla Kurulan Meclis Araş-tırma Komisyonu Raporu No: 716. (2015). Türkiye Büyük Millet Meclisi.

- Semerci, P., Erdoğan, E. (2017). Ben Kendim Büyüdüm Demiyorum-Adana’da Mevsimlik Gezici Tarım İşçilerinin Çocuklarının Yaşam Koşullarının Çocuğun iyi Olma Hali Perspektifinden İyileştirilmesi Projesi Araştırma Sonuçları. İstanbul Bilgi Üniversitesi.

5 Mevsimlik Gezici Tarım İşçiliği Araştırma Raporu. (2014). Hayata Destek Derneği.6 Fındık Hasadının Oyuncuları: Batı Karadeniz İllerinde Fındık Hasadında Yer Alan Mevsimlik Gezici Tarım İşçileri, Çocuklar, Tarım Aracıları ve Bahçe Sahipleri Temel Araştırması. (2014). Kalkınma Atölyesi.

22

SCOPE OF THE LEGISLATION REVIEW ON MIGRANT SEASONAL AGRICULTURAL LABOUR

1

23

1.1International Legal Texts

1.1.1Binding Nature of International Legal Texts

The capacity of international legal texts in performing the function of protecting the rights of an individual as a citizen of a State depends on the nature of the text concerned and the commitment of the State to fulfil what these texts require.

International organizations comprising States as their members produce legal texts of differing nature. Texts that are in the form of convention are binding and in some cases they have their monitoring mechanisms as well. Thus, the binding nature of international conven-tions is undisputed. But for any convention to be bin-ding for a state, it is necessary to have that State first accedes to and then ratifies it in line with its domestic law. According to Article 90 of the Turkish Constituti-on, “The ratification of treaties concluded with inter-national organizations shall be subject to adoption by the Grand National Assembly of Turkey by a law ap-proving the ratification.” And it has to be published in the Official Gazette. However, this rule of ratification by the Grand National Assembly (TBMM) is not neces-sary in the case of implementation agreements based on international conventions previously ratified as well as economic, commercial, technical or administrative agreements acted on the basis of authority already granted by law. So these agreements take effect wit-hout being published. But still there is an exception: of agreements that can take effect without ratification, those that are related to economic and commercial is-sues or rights of private persons have to be published. The existence of some agreements that do not need to be presented to the TBMM for ratification gives rise to some legal debates.1

The 5th paragraph of the Constitutional Article 90 states that “international agreements duly put

24

setting standards. In the perspective of the abo-ve-mentioned framework, , ILO conventions that the Republic of Turkey ratified and put into effect under the Constitutional article 90 are binding. As to recom-mendations by the same organization, they are of guiding nature in policy development, legislation and enforcement.

The ILO sets international labour standards in its Inter-national Labour Conference convening annually.7 The organization claims to cover almost all issues relating to work life with its conventions and recommendati-ons since 1919. Indeed, ILO standards constitute the first reference point in issues related to employment. The scope of these issues covers a wide range inclu-ding: some fundamental human rights (in particular rights to establish associations and to organize, colle-ctive bargaining, prohibition of child labour and forced labour, elimination of discrimination in employment), labour management, industrial relations, employment policies, working conditions, social security, health and safety at work, women’s employment, migrant wor-kers, seamen, etc.8 Agriculture is one of these.

There are several inspection procedures regarding the implementation of ILO Conventions. The first is a general mechanism where annual reports submitted by States Parties are examined by the Committee of Experts and then countries are examined by the Com-mittee on the Application of Standards. States Parties may also be requested to submit information con-cerning the implementation of conventions. Finally, the Committee on Freedom of Association examines complaints concerning violations of the right to orga-nize.9

The present study addresses 38 ILO conventions that are directly or indirectly related to the employment of children (Table 1).

While examining the international legislative fra-mework regarding agricultural employment, there is need to consider a series of recommendations and programmes as well. Table 2 below lists documents to be considered in this context.

into effect have the force of law.” No appeal to the Constitutional Court on the grounds that they are unconstitutional can be made with regard to these agreements. In the case of a conflict between national legislations and international agreements concerning fundamental rights and freedoms, the provisions of the latter prevail. This provision of the Constitution is found contradictory in terms of hierarchy of norms and leads to divergence of opinion among jurists par-ticularly on the way to pursue in cases of contradiction between two texts.2

It is acknowledged that such documents as recom-mendations, comments or opinions published by in-ternational organizations like the Parliamentary As-sembly and the Committee of Ministers of the Council of Europe, UN General Assembly or UN Committees have no binding nature.3 While they may be consi-dered as non-binding in purely legal terms, they are still expected to have such nature given how they are constructed. Since these bodies consist of represen-tatives of States, it is normally unexpected of a State to deny a document produced in a process to which it participated and that it found necessary and approp-riate. Indeed, for example, the Committee of Ministers of the Council of Europe may ask information from its member states whether its recommendations are res-pected or not.5

1.1.2International Labour Organization and Conventions on Labour Rights

One of the most basic and important functions of In-ternational Labour Organization (ILO) is to “ensure the adoption of conventions and recommendations of the International Labour Conference that set international standards by the tripartite structure (workers, emplo-yers and government)”.6

As other organizations, the International Labour Con-ference too makes use of various documents while

25

Table 1. ILO Conventions on Agricultural Labour that Turkey is a State Party to

Date of Adoptionby ILO

Date of Ratifying Act Convention

29.10.1919 16.02.1950 Convention No. 2 on Unemployment

25.10.1921 11.02.1946 Convention No. 14 on Weekly Rest (Industry)

25.10.1921 24.10.1960 Convention No. 11 on the Right of Association (Agriculture)

29.10.1921 25.05.1959 Convention No. 15 on Minimum Age (Trimmers and Stokers)

30.05.1928 25.06.1973 Convention No. 26 on Minimum Wage-Fixing Machinery

06.06.1930 23.01.1998 Convention No. 29 on Forced Labour

08.06.1933 11.02.1946 Convention No. 34 on Fee-Charging Employment Agencies

04.06.1934 11.02.1946 Convention No. 42 on Workmen’s Compensation (Occupational Diseases) (Revised)

04.06.1935 09.06.1937 Convention No. 45 on Underground Work (Women)

22.10.1936 25.05.1959 Convention No. 58 on Minimum Age (Sea) Convention (Revised)

03.06.1937 26.11.1992 Convention No. 59 on Minimum Age (Industry)

19.10.1946 24.05.1949 Convention No. 80 on Final Articles Revision

19.10.1946 26.11.1992 Convention No. 77 on Medical Examination of Young Persons (Industrial Occupations)

19.06.1947 13.12.1950 Convention No. 81 on Labour Inspection

17.06.1948 25.11.1992 Convention No. 87 on Freedom of Association and Protection of the Right to Organize

17.06.1948 30.11.1949 Convention No. 88 on Employment Services

18.06.1949 08.08.1951 Convention No. 98 on Right to Organize and Collective Bargaining

08.06.1949 24.10.1960 Convention No. 95 on Protection of Wages

06.06.1951 13.12.1966 Convention No. 100 on Equal Remuneration

06.06.1951 30.04.1969 Convention No. 99 on Minimum Wage Fixing Machinery (Agriculture)

28.06.1952 29.07.1971 Convention No. 102 on Social Security (Minimum Standards)

05.06.1957 14.12.1960 Convention No. 105 on Abolition of Forced Labour

04.06.1958 13.12.1966 Convention No. 111 on Discrimination (Employment and Occupation)

28.06.1962 19.07.1971 Convention No. 118 on Equality of Treatment (Social Security)

26

27

Table 2. Recommendations and Programmes Related to Agricultural Labour

Date of Adoption Recommendation / Declaration / Programme

24.06.1958 ILO Recommendation No. 110 Concerning Conditions of Employment of Plantation Workers

1992 Implementation of ILO’s International Programme on the Elimination of Child Labour (IPEC)

1998 ILO Declaration on Fundamental Principles and Rights at Work

2017-2023 National Programme and Action Plan in Combating Child Labour

Date of Adoption by ILO

Date of Ratifying Act Convention

05.06.1963 23.05.1967 Convention No. 119 on Guarding of Machinery

17.06.1964 09.11.1976 Convention No. 122 on Employment Policy

22.06.1965 08.05.1991 Convention No. 123 on Minimum Age (Underground Work)

28.06.1967 30.11.1972 Convention No. 127 on Maximum Weight

02.06.1971 25.11.1992 Convention No. 135 on Workers’ Representatives

06.06.1973 23.01.1998 Convention No. 138 Concerning Minimum Age for Admission to Employment

04.06.1975 26.11.1992 Convention No. 142 on Human Resources Development

02.06.1976 26.11.1992 Convention No. 144 on Tripartite Consultation (International Labour Standards)

06.06.1979 15.07.2003 Convention No. 153 on Hours of Work and Rest Periods (Road Transport)

03.06.1981 07.01.2004 Convention No. 155 on Occupational Safety and Health and Working Environment

02.06.1982 09.06.1994 Convention No. 158 on Termination of Employment

17.06.1999 25.01.2001 Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour

15.06.2006 20.02.2009 Convention No. 187 on Promotional Framework for Occupational Safety and Health

28

The UN Covenant on Economic, Social and Cultural Rights was adopted by the United Nations General Assembly on 16 December 1966 and it took effect on January 3rd, 1976. Turkey signed the Covenant on Au-gust 15th, 2000, ratified it on 4 June 2003 with the Law no. 4867 and the covenant became effective for Turkey on December 23rd, 2003. This covenant is in-tegral with the United Nations Charter and Covenant on Civil and Political Rights. Turkey made four state-ments while acceding to this Convention:

(1) Obligations imposed by the Convention will be fulfilled in line with obligations under the United Na-tions Charter,

(2) Provisions of the Convention will be observed only vis-à-vis those states that Turkey has diplomatic relations with,

(3) The Convention will be implemented within the territorial boundaries of the Turkish Republic,

(4) Paragraphs (3) and (4) in Article 13 of the Con-vention will be implemented within the framework of Articles 3, 14 and 42 of the Constitution of the Re-public of Turkey.

The Committee on Economic, Social and Cultural Ri-ghts is the monitoring body of the International Co-venant on Economic, Social and Cultural Rights.

The UN Convention on the Rights of the Child was adopted by the UN General Assembly on 20 Novem-ber 1989 and it took effect on 2 September 1990.

Other International Conventions and Principles

There are three more conventions related to the employment of children in seasonal agriculture inc-luding one by the Council of Europe and two by the UN General Assembly (Table 3).

The European Social Charter was opened to signa-ture in Turin-Italy in 1961 and the charter took effect in 1965. Adopted by the members of the Council of Europe, the Charter was signed by Turkey on 18 Octo-ber 1961 and ratified on 16 June 1989 with the Law No. 3581. Upon the submission of ratification documents to the Secretary General of the Council of Europe, the Charter took effect in Turkey as of 24 December 1989. The Charter is a document developed to sup-port the European Human Rights Convention that regulates civil and political rights and to safeguard economic and social rights; as such, it sets important standards in this area.10 The revised European Soci-al Charter took effect on 1 July 1999. Turkey signed the Revised European Social Charter on October 6th, 2004 and ratified it on 22 March 2007. Turkey ratified 91 articles of the Charter including article 7 related to the protection of children and youth without any reservation, but made her reservations to 7 articles. Of these articles, those relating to the work life are: Article 2/3 on annual paid leave of minimum four we-eks; 4/1 on fair remuneration; 5 on the right to organi-se; and Article 6 on the right to collective bargaining. The monitoring body of the European Social Charter is the European Committee on Social Rights.

Table 3. Conventions on Employment of Children as Seasonal Migrant Agricultural Workers Adopted by the Council of Europe and UN General Assembly

Date of Ratification Date of Adoption Convention

18.10.1961 16.06.1989 European Social Charter (1961 – 1989)

16.12.1966 04.06.2003 UN Convention on the Rights of the Child (1989 – 1994)

20.11.1989 09.12.1994 UN Covenant on Economic, Social and Cultural Rights (1966-2003)

01.07.1999 27.09.2006 Revised European Social Charter (1999 – 2006)

29

spirit of the Turkish Constitution and Lausanne Peace Treaty.” The Convention introduces arrangements to all domains that are related to children. Article 32, in particular, sets rules related to working and employ-ment of children. The implementation of the Conven-tion on the Rights of the Child is regularly monitored by the UN Committee on the Rights of the Child.

There are also other guiding documents including recommendations and directives related to the emp-loyment of children (Table 4).

Turkey signed the Convention on 14 September 1990,

ratifying it 4 years after on December 9th, 1994 (with

the Law No. 4058). The Convention was published in

the Official Gazette No.22138 on 11 December 1994,

but since ratification documents were entrusted to

the UN General Secretary on 4 April 1995, it became

effective in Turkey on 4 May 1995. Turkey adopted

Articles 17, 29 and 30 of the Convention by making

the reservation, “Turkey reserves the right of cons-

truing these articles in line with the provisions and

Table 4. Directives and Recommendations Related to the Employment of Children in Seasonal Migrant Agricultural Works11

Date of adoption Recommendation / Declaration / Programme

1972 UN Stockholm Declaration

1987 UN World Commission on Environment and Development of Our Common Future Report (Brundtland Report)

14.01.1991Council Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship

25.06.1991Council Directive 91/383/EEC supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed- duration employment relationship or a temporary employment relationship

1992 Declaration of the UN Conference on Environment and Development (RIO Declaration) and Agenda 21 Action Plan

1993 World Conference on Human Rights, Vienna Declaration and Action Programme

22.06.1994 Council Directive 94/33/EC on the protection of young people at work

1997 Special Session of the UN General Assembly (Earth Summit +5)

2000 UN Millennium Development Goals

15.09.2000 European Commission Recommendation 2000/581/EC

04.11.2003Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organization of working time

19.11.2008 Directive 2008/104/EC of the European Parliament and of the Council on temporary agency work

2012 Sustainable Development Conference Declaration (RIO+20)

30

(1936). All these legislative arrangements took effect while Turkey was not a Party to any ILO Convention.

Both relevant activities and relations weakened du-ring the Second World War. Following the start of active relations with ILO, first the Law on Paid Leave to Workers on Weekends and General Holidays took effect in 1951.

The right to work was legally safeguarded first with the Constitution of 1961. Arrangements related to working life under the heading “Provisions Related to Employment” laid the ground for the enactment of the Trade Union Law in 1963.

In this period there were two initiatives, in 1964 and in 1978, to draft a special labour code for agricultu-re, but they were not finalized and enacted. In the same period, special labour codes were prepared for seamen and journalists (Sea Work and Press Work) though their numbers are much smaller than agri-cultural workers and the Labour Code No. 1475 took effect in 1971, leaving agricultural labour out of scope.

As a branch of economic activity, agriculture was first included in labour code in 2003 with the Law No. 4857. In spite of this, since an enterprise has to employ more than 50 workers for the labour code to be applicable, a large majority of agricultural enterp-rises remains out of the scope of this legislation.

1.2National Law Arrangements

We see that first official arrangements in Turkey re-lated to employment relations date back to Mecelle (Ottoman civil code) before the Republic and various statutes on implementation. The Mecelle which also had applicability to agriculture regards employment relations as a relation of hiring. While a person who lets his labour off by working in agriculture becomes an agricultural worker, the landholder who hires his labour becomes the “employer”. The Mecelle lays drown provisions relating to working period, pay-ment to be made and obligations of the employer, it contains no arrangement pertaining to enforcement. As to statutes that deal with enforcement in this pe-riod we can refer to Dilaverpaşa Statute concerning mining works in Ereğli and to İbrahimpaşa Statute concerning farming activities in Çukurova.

Steps to introduce a legislative framework to emp-loyment relations started from the early years of the Republic, but the process spread over a rather long period. Early steps in this regard include the following: Law No. 394 on Weekly Rest (1924), Code of Obligati-ons No. 818 (1926), Public Health Law No. 1593 (1930), Law No. 2739 on National Holidays and General Vaca-tion Days (1935) and finally the Labour Code No. 3008

İbrahim Paşa Statute

It was a statute related particularly to agricultural activities in Çukurova-Adana. Under this statute working periods were fixed as 5.5 days but wages were paid over 7 days. In other words, 1.5 days that are not worked are also paid for. Wage rate was determined by a commission comprising employers’ and workers’ representatives. This commission tried to settle disputes relating to wage or working conditions without going to court. After the abolition of this statute in the 1950s, 7 days’ pay for 5.5 days of work ceased to be the norm.

Source: Çukurova’da Tarımın Tarihi, Adana Ticaret Borsası (2013).

31

Various regulations related to employment, particu-larly to matters related to the implementation of the Labour Code and the Law on Turkish Employment Agency were issued. In addition to these regulations, there were two Prime Ministerial Circulars on Seaso-nal Migrant Agricultural Workers -first in 2010 and se-cond in 2017- to guide implementation. Furthermo-re, the Ministry of National Education (MoNE) issued two circulars in 2011 and 2016, respectively, and the Ministry of Family and Social Policies (MoFSP) issued one in 2012 (Table 6).

There is no available data showing the size of agri-cultural enterprises in terms of persons they employ. In terms of economic size, we observe, in 2016, cate-gories such as 6,660-26,640 TL (36.3%) and 26,640 – 83,250 TL (27.5%). 25.9% of agricultural enterprises operate on 20-49 decares of land and 24.5% on 200-499 decares.12 These figures clearly show the absen-ce of any possibility for agricultural enterprises to permanently employ 51 workers on contractual basis and thus operate under the Labour Code.

As shown in Tables 5 and 6, legislation in this field is quite dispersed.

Date of Taking Effect Law No. Title Amendment or Repeal

21.01.1924 394 Law on Weekly RestAfter amended six times from 1924 to 1956, finally repealed by the Law No. 7033 dated 2017.

08.05.1926 818 Code of Obligations Repealed by the Law No. 6098 dated 11.01.2011.

06.05.1930 1593 Law on Public Health* Amended 20 times between the years 1932 and 2016.

14.07.1934 2559Law on Duties and Authorities of Police*

22 amendments were made in the period 1935-2017.

01.06.1935 2739Law on National and General Holidays

Repealed by the Law No. 2429 dated 17.03.1981.

21.10.1935 2834Law on Agricultural Marketing Cooperatives and Unions


15.06.1936 3008 Labour Code (industry and trade) Repealed by the Law No. 1475 dated 25.08.1971.

28.06.1938 3512 Law on Associations

Amended by the Law No.4919 dated 10.06.1946 and lost its effect in working life upon taking effect of the Law No. 274 on Trade Unions. Then repealed by the Law No. 1630 on Associations dated 22.12.1972.

18.01.1940 3780 National Protection Law Repealed in 1960.

15.06.1945 4753Law on Provision of Land to Farmers


16.07.1945 4792 Law on Workers’ Insurance Institution


07.07.1945 4772 Law on Occupational Accidents, Occupational Diseases and Maternity Benefits


Table 5. Laws Related to Agricultural Works Enacted after the Republic

32


30.01.1946 4841 Law on the Organization and Duties of the Ministry of Labour


26.02.1947 5018 Law on Workers’ and Employers’ Unions and Confederations

Amended by the Law No. 7286 dated 01.06.1959 and repealed by the Law No. 274 dated 15.07.1963.

10.01.1950 5502 Law on Sickness and Maternity Insurance


15.08.1951 5837 Law on Paid Leave for Workers on Weekends and General Holidays

Amended in 1956 by the Law No. 6734 and repealed by the Law No. 1475 dated 1.09.1971.

05.01.1961 222 Law on Primary Education and Education*

Some articles were amended by the Law No. 6287 dated 30.03.2012.

15.07.1963 274 Trade Union Law Repealed by the Law No. 2821 on Trade Unions dated 5.5.1983.

15.07.1963 275 Law on Collective Bargaining, Strike and Lockout


01.08.1964 506 Social Security Law* Repealed by the Law No. 5510 dated 16.06.2006 with the exception of Articles 142 and 143, annex article 36 and provisional articles 20, 81 and 87.

24.04.1969 1163 Law on Cooperatives Repealed by the Law No. 4572 dated 01.06.2000.

01.09.1971 1475 Labour Code Amended 9 times in the period 1975 -2003, it was finally repealed by the Law No. 4857 dated 10.06.2003.

25.06.1973 1757 Land and Agricultural Reform Law

Constitutional Court annulled in 1976.

19.03.1981 2429 Law on National and General Holidays*

Amended 4 times between the years 1983 and 2016.

05.05.1983 2821 Trade Union Law Repealed by the Law No. 6356 dated 18.10.2012.

05.05.1983 2822 Law on Collective Bargaining, Strike and Lockout


20.10.1983 2925 Law on Social Security of Agri-cultural Workers*

Articles 9, 11, 12, 18, 19, 27, 28, 29 and 37 were repealed by the Law No. 4447 dated 25.08.1999 and then articles 1-5 and 13-17 by the Law No. 5510 dated 31.05.2006.

33


20.10.1983 2926 Law on Social Security of Self-Employed in Agriculture


09.01.1985 3146 Law on the Organization and Duties of the Ministry of Labour and Social Security

Amended 19 times between the dates 04.05.1989 and 13.08.2016.

30.04.1985 3186 Law on the Adoption of the De-cree Law (KHK) on the Establish-ment of Agricultural Marketing Cooperatives and Unions with Some Modifications


19.06.1986 3308 Vocational Training Law (Appren-ticeship)*


25.08.1999 4447 Unemployment Insurance Law* Amended 11times between the dates 28.06.2014 and 27.03.2018.

01.06.2000 4572 Law on Agricultural Marketing Cooperatives and Unions*

Amended 6 times between the dates 07.08.2003 and18.04.2013.

22.05.2003 4857 Labour Code* The following articles were repealed by the Law No. 31 on Work Safety and Health dated 30.06.2012: Article 2 paragraph four, article 63 paragraph four, article 69 paragraphs four, five and six, articles 77- 80, 81, 83-89, 95, 105 and provisional article 2.

25.06.2003 4904 Law on Turkish Employment Agency*


19.07.2005 5403 Law on Soil Protection and Land Use*


20.05.2006 5502 Law on Social Security Institution*


16.06.2006 5510 Law on Social Security and General Health Insurance*


04.01.2011 6098 Code of Obligations* Amended 4 times between the dates 01.07.2012 and 11.04.2013.

30.06.2012 6331 Work Safety and Health Law* Amended 8 times between the dates 03.05.2013 and 05.12.2017.

18.10.2012 6356 Law on Trade Unions and Collec-tive Bargaining *


* Legislation presently in effect.

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Table 6. Regulations and Circulars Related to Agricultural Labour Presently in Effect

Date Regulation / Circular

18.05.1984 Regulation on the Enforcement of the Law No. 2925

14.03.2004Regulation on Principles and Procedures Relating to the Employment of Child and Young Workers (Legal basis: Article 71 of the Law No. 4857)

06.04.2004Regulation on Working Conditions of Persons in Occupations Related to agriculture and Forestry (Legal basis: Article 111 of the Law No. 4857)

06.04.2004Regulation on Overtime and Longer Periods of Working under the Labour Code (Legal basis: Article 41of the Law No. 4857)

06.04.2004Regulation on Working Periods that cannot be Divided into Weekly Working Days (Legal basis: Article 76 of the Law No. 4857)

06.04.2004 Regulation on Working Periods under the Labour Code (Article 63 of the Law No 4857.)

03.09.2008Regulation on Activities deemed to be Industrial, Commercial, Agricultural and Forestry Work(Legal basis: Article 111 of the Law No. 4857)

27.05.2010 Regulation on Labour Intermediaries in Agriculture (Article 3 of the Law No.4904)

28.07.2010Notification on amendment of earlier notification on monetary fines to be applied on the basis of Article 20 of the Law No. 4904 on Turkish Employment Agency and Article 118 of the Labour Code No. 4857

20.08.2012 MoFSP 2012/20 – Circular on the Prevention of Child Labour

05.02.2015 Regulation on Public Health Centre and its Units

21.03.2016 MoNE Circular 2016/5 Circular on Seasonal Agricultural Child Workers

19.04.2017 Prime Ministerial Circular 2017/6 on Seasonal Migrant Agricultural Workers

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Notes

1 Başlar, K. (2004). Uluslararası Antlaşmaların Onaylanması, Üstünlüğü ve Anayasal Denetimi Üzerine. Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni: Prof. Dr. Seving Toluner’e Armağan, 24/1-2. www.anayasa.gen.tr/baslar-90ncimadde.pdf 2 Tunç, H. (2000). Milletlerarası Sözleşmelerin Türk İç Hukukuna Etkisi ve Avrupa İnsan Hakları Mahkemesinin Türkiye İle İlgili Örnek Karar İncemesi. Anayasa Yargısı, 17, 174-192. www.anayasa.gov.tr/files/pdf/anayasa_yargisi/anayargi/tunc.pdf3 Altıntaş, Ö.F. (2007). Avrupa Birliği Hukukunun Kaynakları. T.C. Adalet Bakanlığı Avrupa Birliği Genel Müdürlüğü. www.abgm.adalet.gov.tr/yayinlar/belgeler/e-kutuphane/AvrupaBirligiHukukununKaynaklari.pdf

4 Gemalmaz, M.S. (1995). Temel Belgelerde İnsan Hakları Usul Hukuku. 2. Cilt. İnsan Hakları Derneği.5 Karahanlıoğulları, O. (1996). İdari Takdir Yetkisinin Kullanılmasına İlişkin R(80)2 Sayılı Avrupa Konseyi Bakanlar Komitesi Tavsiye Kararı. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 1-4(45), 323-337. dergiler.ankara.edu.tr/dergiler/38/297/2722.pdf6 www.ilo.org/ankara/about-us/WCMS_372879/lang--tr/index.htm7 Sayın, A.K. ILO Normlarının ve Örgütün Denetim Mekanizmasının Türk İş Hukukuna Etkisi www.calismadunyasi.gov.tr/pdf/sayi1/01.pdf, sf.148 www.ilo.org/ankara/about-us/WCMS_372879/lang--tr/index.htm9 Sayın, A.K. (2013). ILO Normlarının ve Örgütün Denetim Mekanizmasının Türk İş Hukukuna Etkisi. ÇSGB Çalışma Dünyası Dergisi, 1(1), 11-34. www.calismadunyasi.gov.tr/pdf/sayi1/01.pdf10 Aydın, F. (2014). Avrupa Sosyal Şartı. Çalışma ve Sosyal Güvenlik Bakanlığı Yayın No: 6. www.csgb.gov.tr/media/2077/avrupa-sosyalsarti.pdf11 Only those documents relevant to seasonal migrant agricultural workers and child labour are included here. For more detailed information see, https://www.csgb.gov.tr/media/2079/calismamevzuat%C4%B1_abd.pdf

12 TÜİK Haber Bülteni, 19.04.2018, Sayı 24869.

36

EVALUATION OF THE LEGISLATION ON AGRICULTURAL LABOUR IN TURKEY

2

37

2.1Status of Turkey as a Party to Conventions

Starting from 1927 Turkey followed ILO activities as an observer and after joining the League of Na-tions in 1932, she also became an ILO member as required by the article 387 of the Versailles Peace Treaty.1 The first ILO Convention that Turkey gave effect was related to employment: The Conventi-on No. 45 on Underground Work (Women). This convention which was adopted by ILO in 1935 took effect in Turkey in 1937 with the ratification law No. 3229. From that date up to 1946 Turkey did not be-come State Party to any convention. It is observed that, from 1932 to 1946, Turkey kept observing ILO activities without any dynamic cooperation with the organization.2

The first Labour Code in Turkey took effect in 1936, followed by the establishment of Ministry of La-bour in 1945. The Trade Union Law taking effect in 1947 lifted the ban on class-based organization and made it possible for workers to organize. Following these developments, three ILO Conventions were acceded to in 1946: The Convention No. 14 on We-ekly Rest (Industry), Convention No. 42 on Work-men’s Compensation (Occupational Diseases) and Convention No. 34 on Fee-Charging Employment Agencies. The Convention No. 98 on the Right to Organize and Collective Bargaining signed in 1949 was ratified in 1951.

So far Turkey has acceded to 59 conventions in total including 8 conventions that ILO considers as funda-mental, 3 of 4 governance conventions and 48 of 177 technical conventions.

11 out of 38 conventions covered by this study were ratified by Turkey and thus became domestic law norm within the first five years following their inter-national adoption (Table 7). One of these is the Con-vention No. 182 on Prohibition and Immediate Action for the Elimination of the Worst Forms of Child La-bour and another one is the Convention No. 187 on

38

years. Nevertheless, the Convention No. 105 on the Abolition of Forced Labour which was adopted later than the Forced Labour Convention was ratified by Turkey and made a domestic law norm within three years following its adoption by ILO.

Promotional Framework for Occupational Safety and Health.

The Convention No. 29 on Forced Labour first adop-ted by ILO in 1930 was ratified by Turkey 68 years after its international adoption and the Convention No. 59 on Minimum Age (Industry-Revised) after 55

Turkey-Ratifi-cation Date

Convention (time period between accession and ratification) ILO/UN/EC

Adoption Date

09.06.1937 C (Convention) 45 Underground Work (Women) (2 years)* 04.06.1935

11.02.1946 C14 Weekly Rest (Industry) (25 years) 25.10.1921

11.02.1946 C42 Workmen’s Compensation (Occupational Diseases) (Revised) (12 years) 04.06.1934

11.02.1946 C34 Fee-Charging Employment Agencies (13 years) 08.06.1933

24.05.1949 C80 Revision of Final Articles (3 years)* 19.10.1946

30.11.1949 C88 Employment Service (1 year)* 17.06.1948

16.02.1950 C2 Unemployment (31 years) 29.10.1919

13.12.1950 C81 Work Inspection (3 years)* 19.06.1947

08.08.1951 C 98 Right to Organize and Collective Bargaining (2 years)* 18.06.1949

25.05.1959 C 15 Minimum Age (Trimmers and Stokers) (38 years) 29.10.1921

25.05.1959 C 58 Minimum Age (Sea) (Revised) (23 years) 22.10.1936

24.10.1960 C 11 Right of Association (Agriculture) (39 years) 25.10.1921

24.10.1960 C 95 Protection of Wages (11 years) 08.06.1949

14.12.1960 C 105 Abolition of Forced Labour (3 years)* 05.06.1957

13.12.1966 C100 Equal Remuneration (15 years) 06.06.1951

29.07.1971 C102 Social Security (Minimum Standards) (19 years) 28.06.1952

13.12.1966 C 111 Discrimination (Employment and Occupation) (8 years) 04.06.1958

23.05.1967 C 119 Guarding of Machinery (4 years)* 05.06.1963

Table 7. Status of Turkey as a Party to Conventions

39

30.04.1969 C 99 Minimum Wage Fixing Machinery (Agriculture) (18 years) 06.06.1951

19.07.1971 C 118 Equality of Treatment (Social Security) (9 years) 28.06.1962

29.07.1971 C 102 Social Security (Minimum Standards) (19 years) 28.06.1952

30.11.1972 C 127 Maximum Weight (5 years)* 28.06.1967

25.06.1973 C 26 Minimum Wage-Fixing Machinery (45 years) 30.05.1928

09.11.1976 C 122 Employment Policy (12 years) 17.06.1964

16.06.1989 European Social Charter (38 years) 18.10.1961

23.01.1998 C 29 Forced Labour (68 years) 06.06.1930

08.05.1991 C 123 Minimum Age (Underground Work) (26 years) 22.06.1965

25.11.1992 C 87 Freedom of Association and Protection of the Right to Organize (44 years) 17.06.1948

25.11.1992 C 135 Workers’ Representatives (21 years) 02.06.1971

26.11.1992 C 59 Minimum Age (Industry) (Revised) (55 years) 03.06.1937

26.11.1992 C 77 Medical Examination of Young Persons (Industry) (46 years) 19.10.1946

26.11.1992 C 142 Human Resources Development (17 years) 04.06.1975

26.11.1992 C 144 Tripartite Consultation (International Labour Standards) (16 years) 02.06.1976

09.06.1994 C 158 Termination of Employment (12 years) 02.06.1982

09.12.1994 UN. Convention on the Rights of the Child (5 years)* 20.11.1989

23.01.1998 C 130 Minimum Age in Admission to Employment (15 years) 06.06.1973

15.07.2003 C 153 Hours of Work and Rest Periods (Road Transport) (24 years) 06.06.1979

07.01.2004 C 155 Occupational Safety and Health (23 years) 03.06.1981

25.01.2001 C 182 Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (2 years)* 17.06.1999

04.06.2003 UN Covenant on Economic, Social and Cultural Rights (37 years) 16.12.1966

20.02.2009 C187 Promotional Framework for Occupational Safety and Health (3 years)* 15.06.2006

* Indicates conventions that were ratified by the Republic of Turkey within the first 5 years following their international adoption and estab-lished as domestic law norm.

40

the constitution states that “The forms and conditi-ons of physical and intellectual work in the nature of civic duty in cases where the needs of the country so require shall be regulated by law in accordance with democratic principles.” (Art.42).

Another limitation specific to this period is related to private enterprises. The last paragraph in the Article 40 brings in an exception in favour of state interven-tion by stating: “The state shall adopt those measures necessary to ensure the functioning of private enterp-rises in an environment of security and stability con-sistent with interests of national economy and social objectives”

As different from the 1924 Constitution, the 1961 Cons-titution does not stipulate this freedom as an overarc-hing principle but regulates many rights in working life placing each under the protection of the Constitution (Table 9).

As in 1961, the 1982 Constitution regulates the freedom of labour and contract by stating that “every body is free to work and to contact in any sector of preferen-ce” (Art. 48). Forced labour is prohibited (Art. 18). This Constitution too regards labour both as a right and a duty (Art.49). Although reminiscent of the 1961 Cons-titution in many respects, the 1982 Constitution keeps its significantly different approach to such issues as the right to fair remuneration. While the 1961 Cons-titution assigns the State the duty of ensuring fair remuneration that will “provide a decent standard of living” the 1982 Constitution states that “The Sta-

It is observed that Turkey remains in abstention when it comes to some ILO conventions related to employment in agriculture. Indeed, while ILO adop-ted four conventions in this field in the period from 1923 to 2001, Turkey became a party to none of the-se (Table 8).

2.2Constitutional Provisions related to Agri-cultural Workers

2.2.1Constitutional Arrangements Related to the Right to Work and Labour Rights: Domain of Limited Free-doms

After defining the freedom and right to work as “among natural rights of Turks” (Art.70), the 1924 Constitution prohibits forced labour and drudgery (Art.73) and adds that this freedom can be restricted only by law (Art.79).

The 1961 Constitution introduces some more detail related to freedom of work (Art.40); under the title “Freedom of Work and Contract” it states that every individual is entitled to work and to act on the contract in the field of his choice and that the establishment of private enterprises is free. The Constitution adds that these freedoms can be restricted only by law and for public interest. Having an occupation is considered both a right and a duty. While drudgery is prohibited,

Adopted by ILO on Convention

31.08.1923 No. 10 on Minimum Age for Children Employed in Agriculture

04.07.1952 No. 101 on Holidays with Pay in Agriculture

25.06.1969 No. 129 on Labour Inspection in Agriculture

05.06.2001 No. 184 on Safety and Health in Agriculture

Table 8. ILO Conventions on Agricultural Labour that Turkey is Yet Not a State Party

41

1961 Constitution 1982 Constitution

The State shall protect workers and support work by adopting social, economic and financial measures to provide a decent life to workers and to ensure steady progress in working life including measures against unemployment (Art.41)

The State shall take the necessary measures to raise the standard of living of workers, and to protect workers and the unemployed in order to improve the general conditions of labour, to promote labour, to create suitable economic conditions for prevention of unemployment and to secure labour peace (Art. 49).

No one shall be required to perform work unsuited to his/her age, sex, and capacity. Minors, women, and physically and mentally disabled persons shall enjoy special protection with regard to working condi-tions. (Art.43)

No one shall be required to perform work unsuited to his/her age, sex, and capacity. Minors, women, and physically and mentally disabled persons shall enjoy special protection with regard to working condi-tions. (Art.50)

All workers have the right to rest. Rights and conditions relating to paid weekends, holidays, and paid annual leave shall be regulated by law. (Art.44)

All workers have the right to rest and leisure. Rights and conditions relating to paid weekends and holidays, together with paid annual leave, shall be regulated by law. (Art.50)

The state shall take the necessary measures to ensure that workers earn a fair wage commensurate with the work they perform and a decent standard of life (Art.45)

Wages shall be paid in return for work. The state shall take the neces-sary measures to ensure that workers earn a fair wage commensurate with the work they perform and that they enjoy other social benefits. (As amended on October 3, 2001; Act No. 4709) In determining the minimum wage, the living conditions of the workers and the economic situation of the country shall also be taken into account (Art. 55).

Employees and employers have the right to form unions and higher organizations, without prior permission, to become a member of a union and to freely withdraw from membership (Art.46 – 1971)

Employees and employers have the right to form unions and higher organizations, without prior permission, and they also possess the right to become a member of a union and to freely withdrawfrom membership, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations. No one shall be forced to become a member of a union or to withdraw from membership. (Art.51 – 2001)

In their relations with employers, workers have the right to collective bargaining and strike to maintain or improve their economic and social status. (Art.47)

Workers and employers have the right to conclude collective labour agreements in order to regulate reciprocally their economic and social position and conditions of work. (Art.53) Workers have the right to strike during the collective bargaining pro-cess if a disagreement arises. The procedures and conditions govern-ing the exercise of this right and the employer’s recourse to a lockout, the scope of, and the exceptions to them shall be regulated by law.The right to strike and lockout shall not be exercised in a manner contrary to the rules of goodwill, to the detriment of society, and in a manner damaging national wealth.The trade union concerned shall be held responsible for any material damage to the workplace as a result of deliberate or faulty acts of workers or the trade union during a strike (Art.54)

Everyone has the right to social security (Art.48) Everyone has the right to social security (Art.60)

Table 9. Provisions of 1961 and 1982 Constitutions Pertaining to the Right and Freedom to Work and Regarding the Agricultural Sector

42

return to their labour. In the 1982 Constitution stress is placed on “facilitating the provision of machinery, equ-ipment and other inputs” and “producers being paid the real value of their products.”

Comparing two constitutions in terms of their articles concerning agricultural production we observe two important differences; while the 1961 Constitution co-vers both farmers and workers under the term “those engaged in agriculture”, the 1982 Constitution refers to “producers”. Secondly, while the 1961 Constitution mentions the “value of labour” the 1982 Constitution refers to the “value of product.” The latter may first appear as favouring farmers since it has no direct and explicit reference to agricultural workers while men-tioning support to producers in acquiring machinery and equipment and getting the value of their product; but actually it does not since no method or mecha-nism is suggested for ensuring that farmers get the value of their product.

In this context, while the 1961 Constitution states that the “State shall adopt measures to ensure the deve-lopment of cooperatives” (Art. 51) 1982 Constitution includes the following: “By considering the interests of national economy, the State shall adopt measures to ensure the development of cooperatives as a means of increasing production and protecting consumers.”

The 1982 Constitution sets priorities for national eco-nomy and adopts support to agricultural producers as a principle in this line. The 1982 constitution gives hints about the agricultural policy of the time albeit not ref-lecting it fully.

The share of agriculture in gross national product (GNP) was 43.4 per cent in 1923 which first fell to 24.8 per cent in 19803, and then to 6.2 per cent in 2016;4 indicating a serious erosion of importance of agricul-tural policies.

In fact the 1982 Constitution falls behind the 1961 Constitution in terms of its arrangements relating not only to agriculture but to workers’ rights in general. The 1961 Constitution establishes that the needs of

te shall take the necessary measures to ensure that workers earn a fair wage commensurate with the work they perform and that they enjoy other social bene-fits”. The Constitution envisages that living conditi-ons of the workers and the economic situation of the country must be taken into account while determining the minimum wage (Table 9).

2.2.2Constitutional Arrangements related to Agricultural Production: From the Value of Labour to the Value of Product

The 1961 and 1982 Constitutions introduced arrange-ments in the field of agriculture as well. The 1961 Cons-titution has a separate article on the “protection of agriculture and the farmer” which states:

“The State shall take necessary measures to pro-vide the people with adequate nourishment, to assure an increase in agricultural production to the benefit of the society, to prevent erosion, to enhance the value of agricultural products and the labour of those engaged in agriculture.”

The 1982 Constitution has its provisions guiding agri-cultural policy to be pursued. It envisages that the sector of agriculture must develop in balance with industry. Firstly, the State is assigned the task of “…planning and establishing necessary organization par-ticularly to ensure the rapid, harmonious and balanced development of industry and agriculture throughout the country” (Art. 166). Then, in accordance with these principles of planning, it assigns the State the duties of “facilitating the acquisition by farmers and livestock breeders of machinery, equipment and other inputs in order to increase crop and livestock production” and “taking necessary measures for the utilization of crop and livestock products, and to enable producers to be paid the real value of their products.” The 1961 Consti-tution covers agricultural workers as well while estab-lishing that those engaged in crop farming and stock breeding should be accorded what they deserve in

43

bureaucracy… and representatives of tradesmen and farmers from the ranks of commercial capital and big landowners.”7

In the period, the Constitution provided for the right to work albeit there were no provisions on rights related to employment. The first arrangement related to emp-loyment relations is the Law No. 394 on Weekly Rest (1924) taking effect after the İzmir Economic Congress in 1923. The Law on Weekly Rest, however, covered settlements with population of 10,000 or more, thus leaving out rural areas where agricultural labour was mainly present. Following this law, the Law No. 2739 on National Holidays and General Vacation Days took effect in 1925.

The Code of Obligations No. 818 which took effect in 1926 is the first legislative act concerning all workers including those in agriculture. However, the code had no specific arrangements related to agricultural works. Yet, a significant part of population in this period was in that sector. It is stated that agriculture played its im-portant role in the revival of economic life in the post-war period and the period 1923-1929 deserves to be called “golden years” in terms of increase in agricultu-ral output.8 The population census of 1927 showed that 83.7 per cent of Turkey’s population, which was 13.5 million at that time, year lived in rural areas; 4,370,000 out of a working population of 5,350,000 were in agri-cultural sector; and that 1,751,329 farming households represented 9,145,000 people.9 The agricultural census carried out the same year showed that on average 25 decares of land is sown by each farming family. Howe-ver, there were great differences between regions with respect to land proprietorship and 5 per cent of rural population held 65 per cent of total land under cultu-re.10

The very large size of agricultural population and exis-tence of significant problems in land ownership inevi-tably pushed agricultural policies to the forefront in the early years of the republic. Between 1920 and 1923, the aşar (tithe) tax was debated on 26 occasions in the par-liament11; in İzmir Economic Congress (1923) workers’

working people must be considered in fixing wages by saying “The state shall adopt necessary measures so that workers may earn decent wages commensura-te with the work they perform and sufficient to enable them to maintain a decent standard of living”. The 1982 Constitution, on the other hand, associates wage only with the work performed and economic conditions of the country under the title “Provision of fair wage” (Art.55) stating that “The state shall take the necessary measures to ensure that workers earn a fair wage com-mensurate with the work they perform and that they enjoy other social benefits.” Following an amendment made in 20015 “living conditions of workers” was added to this paragraph and the latest text of the paragraph became “In determining minimum wage living conditi-ons of workers and economic situation of the country shall also be taken into account.”6

2.3Legal Provisions Related to Agricultural Labour

This part seeks to make an evaluation of the legislation pertaining to agricultural employment in the history of Turkish Republic. To find out reasons for having a re-levant legislation or not, the history was examined in periods each lasting for twenty years, and changes in international and domestic legislation were addressed together with the political economy of each period.

2.3.1The Period 1920-1940: Unusual Awareness in Working Life

In the first half of this period, Turkey participates to the ILO as an observer. In the early years of the Republic it was envisaged to organize Economic Congresses assembling representatives of farmers, tradesmen, in-dustrialists and workers to develop economic policies. However these congresses failed related expectations mainly for having “worker and industrial delegates mostly from government officials and top members of

44

The Law on Public Health and the Law on Police Duties and Authority, which took effect in this period and still in effect are two legislative pieces introducing arran-gements concerning where women and children can work and at what age.

It is known that there were debates on the Labour Code in the Parliament in 1931. In response to a question rai-sed, Mustafa Şeref, Minister of Economy explained the purpose of the bill as “protecting vulnerable persons such as women and children, arranging working hours, and introducing provisions to safeguard the interest of workers who have suffered occupational accidents.”15 The Minister added that the bill considered the “stru-ggle between owners of capital and business enjoying wealth and power on the one side and people seeking jobs on the other” and went on to say that absence of any regulation in this field “leads to women and child toilers employed for 16 hours a day since they are pre-ferred to adult male workers as a much cheaper source of labour.”16 In the same speech it was stated that the bill was drafted in Turkey and the ILO was consulted later. As can be inferred from these debates, the draf-ting of the act took 10 years and this was a point for criticism. The draft came to the parliament on 10 March 1932 but could not pass.

The period 1930-1939 is considered as an interval cha-racterised by efforts to create a national industry and class of bourgeoisie within the framework of principles of protectionism and statism.17 While the class of bour-geoisie was created with State-led investments, the working class was in a rapid process of formation.

Some sources include information that while the La-bour Code was being drafted in this period, there was also another work, in 1934, on Agricultural Labour Code, indicating that it was recognized as far back as that period that there must be a separate legislation for agriculture since modes of employment in that sector cannot be covered by the Labour Code.18

Until the adoption of Labour Code in 1936, employ-ment relations were arranged for in the context of the

representatives supported farmers who asked for the abolishment of aşar and representatives of industry and trade sectors required a fairer system of taxation. In spite of these, the Law on Abolishment of Aşar and Introduction of New Taxation could take effect only on 1 March 1925. It is argued that the policy of supporting agriculture could remain in effect for only 10 years and economic policies shifted to industrialization starting from 1930.12 In 1924 aşar tax accounted for 24 per cent of total budget revenues and it was collected by mül-tezim (private persons collecting tax on behalf of the state). Since the collection of aşar by mültezim meant the marketing of this produce by the same party as well, the abolishment of this in kind tax was actually an income transfer from the State to farmers, and marke-ting of agricultural produce by farmers contributed to the emergence of commercial profit.13 Though no such function as tax collection now, local traders who act as intermediaries in the process from harvesting of crops to plants, where they are processed, have their func-tion similar to that of mültezim. These intermediaries have no place in production, they have their “commis-sion” by acting in-between and this margin of profit by intermediaries add to the cost of products.

The Public Health Law No. 1593 taking effect in 1930 is the first law in Turkey concerning safety and health status of workers in industry and trade. In 1936, the first Labour Code (No. 3008) was adopted. However, these laws do not cover people working in agriculture neither and in industry they are limited to enterprises employing at least 10 workers. In spite of this, it is ge-nerally admitted that the mentioned legislation had important implications for working people:

“For the first time with the Labour Code no. 3008 employer-employee relations in Turkey are arran-ged in an integrated manner with its individual and collective dimensions. While introducing ar-rangements protecting the employee in the realm of employment relations, the law brought in aut-horitarian provisions in collective relations in line with the dominant tendencies of the period and gave a determining weight to the state.” 14

45

Underground Work (Women) limiting women’s emp-loyment in underground works.

The Law on Associations taking effect in 1938 is the first legislation providing for the right to organize. This law makes the establishment of associations subject to notification and allows for the establishment of asso-ciations on economic and professional basis. However, without any time to see and evaluate its impact, a new legislation that would prevent its implementation fol-lowed. The National Protection Law enacted in 1940:

“It is a law enacted at the cost of disabling the Labour Code No. 3008 dated 1936 in the face of possible so-cioeconomic problems during the Second World War. Conferring extraordinary powers to Government, this legislation had some negative provisions for both ca-pital and labour; in the course of time, however, it tur-ned out as an instrument for capital accumulation by exercising control over working class.” 21

Code of Obligations in addition to the Public Health Law and Law on Police Duties and Authorities. With the Labour Code adopted in 1936 “employment relations were regulated in a holistic manner with its individual and collective dimensions”.19 Though collective labour rights are not arranged for, the Law is considered as a progressive move for its time:

“Considering circumstances of the time it was draf-ted, arrangements including limitation of working periods, rules governing overtime work, arranging night shifts in favour of employees, minimum wage, protection of wages, work safety and health, measu-res for protecting women and child workers can be qualified as successful.”20

In this period, one out of 11 conventions adopted after 1936 when Turkey became a full ILO member was sig-ned, ratified and given effect. The first ILO Convention that took effect in Turkey was the Convention No. 45 on

Table 10. Conventions and Laws Taking Effect in the Period 1920–1940


Law No. 2739 on National Holidays and General Vacation Days

Law No. 2834 on Agricultural Marketing Cooperatives and Unions

Public Health Law No. 1593*

Labour Code No. 3008 (Industry and Trade)

Law No. 2559 on Duties and Authorities of Police*

Law No. 394 on Weekly Rest

Code of Obligations No.818

National Protection Law No. 3780

Law on Associations No. 3512

C45 Underground Work (Women) (1935)

The Period 1920 - 40 (Legislation Approved, Enacted and Repealed): Unusual Awareness in Working Life

47

ributed; but the law underwent many changes until the year 1973 and it was eventually diverted from its original purpose. After land distribution started un-der this law and in the early 50s, it is stated that “37.9 per cent of rural families still held 81.4 per cent of land under culture.”25 Debates relating to the objective, content and implementation of this law are impor-tant in understanding one of the problems associa-ted with seasonal migrant agricultural labour, which is ‘landlessness’.

The Law on the Establishment and Duties of the Ministry of Labour took effect in 1946. It is also the year when the ILO Convention No. 14 on Weekly Rest (Industry) which was adopted in 1921 took effect in Turkey. Boratav (1997) observes that in 1947, during the single party regime, there was an important shift in economic policies where statist-protectionist in-dustrialization was abandoned and the principle of statism was reduced to helping private enterprises.26 This is an important observation in understanding the contradictory nature of the period that found its reflections in legislation and its enforcement.

It is stated that in the middle of this period (1946-1953) Turkish economy enjoyed a rather rapid growth accompanied by overall improvement in welfare, whi-ch had its positive effects on working people after the years of war marked by scantiness; however the income share of wage-salary earners was shrinking by years.27 Boratav (1997) notes that agricultural pro-duction increased in this period as a result of some factors including support to agricultural enterprises through such schemes as loans, etc. and spread in the use of tractors, but state policies always favoured big landowners when they had conflicting interests with small farmers.28 This observation also explains reasons behind the non-implemetation of the land provision act and the non-enactment of the Agricul-tural Labour Code.

The Law on Paid Leave for Workers on Weekends and General Holidays was adopted in 1951. In the 14 years

2.3.2The Period 1941-1960: Years of War and Conflicting Interests

Taking effect on 18 January 1940, the National Pro-tection Law No. 3780 prevented the implementation of the provisions of the Labour Code No. 3008 until 1960.

“This legislation that reintroduced compulsory la-bour, altered working hours to the detriment of wor-kers and left women and child labour unprotected from exploitative relations overrode earlier legislative arrangements some of which may be considered as pioneering in their time including the Labour Code no. 3008 and put the burden of destructive outco-mes of the Second World War on the shoulders of workers, peasants, women and children.”22

This law was repealed in 1960.

The policy of incentives to industrialization starting from 1930 led to shift of labour force from agriculture to industry. The agricultural crops tax applied in the period 1944-1946 was reminiscent of the aşar (tithe) tax abolished in 1925 and put a heavy burden on low income rural people.

The first five years of this period coinciding with the World War II was stagnant with respect to legislati-on relating to working life. Nevertheless, the Law on Provision of Land to Farmers adopted in 1945 is sig-nificant. The Law aimed to support landless peasants and farmers with tiny plots and to eliminate extreme unfairness in land distribution. It is stated that this le-gislative attempt was the result of land reform initia-ted in 1930, reflecting, on the one hand, the intention of distributing land under the control of feudal estate to landless peasants and creating a national bourge-oisie on the other.23 Yet the initiative was under the influence of prevailing political and ideological mi-lieu24,and thus did not yield the expected outcome. Under the law, 22 million decares of land was dist-

48

The Period 1941 - 60 (Legislation Approved, Enacted and Repealed): Years of War and Conflicting Interests

49

C15 Minimum Age (Trimmers and Stokers) (1921)

C58 Minimum Age (Sea) (Revized-1936)

C11 Right of Association (Agriculture) Convention (1921)

C95 Protection of Wages (1949)

C105 Abolition of Forced Labour (1957)

Law No. 4753 on Provision of Land to Farmers

Law No. 4792 on Workers’ Security Institution

Law No. 4772 on Work Accidents, Occupational Diseases and Maternity Benefits

Law No. 4841 on the Establishment and Duties of the Ministry of Labour

C14 Weekly Rest (Industry) (1921)

C80 Revision of Final Articles (1946)

C88 Employment Services (1948)

C34 Fee-Charging Employment Agencies (1933)

C42 Workmen’s Compensation (Occupational Diseases) (Revised-1934)

Law No. 5018 on Workers’ and Employers’ Unions and Confederations

Law No. 5502 on Sickness and Maternity Insurance

Law on Paid Leave for Workers on Weekends and General Holidays

C81 Work Inspection (1947)

C 2 Unemployment (1919)

C98 Right to Organize and Collective Bargaining

(1949)

It is stated that after 1954 the share of agriculture in national income started to fall and there was a notable decline in cotton farming in particular.29 In this period there was no legislative work other than the ratifica-tion of international conventions related to work life.

that followed 1946, 13 more ILO conventions were rati-fied by Turkey. These were important conventions re-lated to employment agencies, right to organize and collective bargaining, prohibition of forced labour and minimum age in some trades.

Table 11. Conventions and Laws Taking Effect in the Period 1941-1960

50

In 1962, the UN General Assembly adopted the re-solution 1831 (XVII) concerning “Economic Develop-ment and the Conservation of Nature.” Then, under the influence of activities related to the issues of en-vironment and development, the UN Conference on Environment was held in 1972 in Stockholm on 5-16 June 1972 with the participation of 113 States. The 8th Principle of the outcome document states that “eco-nomic and social development is essential for ensu-ring a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life” which has its significance for agricultural workers in the context of both environmental and human righ-ts.29

However, the influence of this approach was not vi-sible in agricultural policies and practices. In analy-sing this period, Boratav (1997) states that populist polices were geared to leaving untouched the pricing advantages accruing to industrial and commercial capital from protectionist policies, that maintenance of status quo in agriculture was one of the concessi-ons accorded to capital as a result of these policies, and that consequently no step was taken for land re-form .30

2.3.3

The Period 1961-1980: What One Hand Gives is Taken Back by the Other

This is a period of a new Constitution for Turkey. The 1961 Constitution envisages the protection of agri-culture and farmers for adequate nutrition of peop-le and increase in agricultural output to the bene-fit of society as whole. It requires the “adoption of necessary measures to value the labour of” people engaged in agriculture as a part of this responsibi-lity. The period is also accepted as a milestone in transition to planned economic policies.30 In spite of these, the Agricultural Labour Law was not adop-ted in this period neither since relevant objectives of constitution drafters were blocked early at the legislation stage.

Under the title “Provisions Related to Employment”, the 1961 Constitution safeguarded many rights in working life including the right to work, prohibition of drudgery, right to rest, fair remuneration, right to organize, collective bargaining and strike and the ri-ght to social security. Constitutional guarantee for the right to work was provided for the first time in Turkey with the Constitution of 1961. This was fol-lowed by the taking effect of the Law on Trade Uni-ons in 1963.

Besides the Trade Union Law, the Law on Primary Education and Education and the Social Security Law which had indirect relevance to working age and employment of children took effect during the early years of this period. It was followed by the ratification of the ILO Convention No. 100 on Equ-al Remuneration in 1966. In the period of 10 years from 1966 to 1976, 10 ILO Conventions were ratified. In 1967, The Labour Code No. 931 was adopted, but later annulled by the Constitutional Court. A new Labour Code adopted in 1971 took effect. It was fol-lowed by the Law on Agricultural and Land Reform taking effect in 1973.

51


C122 Employment Policy (1964)

C127 Maximum Weight (1967)

UN Stockholm Declaration

C118 Equal Treatment (Social Security) (1962)

C102 Social Security (Minimum Standards) (1952)

C102 Social Security (Minimum Standards) (1952)

Law no. 222 on Primary Education and Education*

Trade Union Law No.274

Law no. 275 on Collective Bargaining, Strike and Lockout

Labour Code No.1475

Law on Land and Agricultural Reform

C100 Equal Remuneration (1951)

C111 Discrimination (Employment and Occupations) (1958)

Social Security Law No.506

Cooperatives Law No. 1163

1961

1963

1964

1966

1967

1973

1969

1971

1972

C119 Guarding of Machinery (1963)

C26 Minimum Wage Fixing Machinery

(1928)

C99 Minimum Wage Fixing Machinery (Agriculture) (1951)

1976


52

The Period 1961 - 80 (Legislation Approved, Enacted and Repealed): What One Hand Gives is Taken Back by the Other

53

and with the Trade Union Law adopted in 1983 agri-cultural workers were recognized as ‘worker’ in terms of their collective rights which differs from the La-bour Code.34 This recognition, however, did not mean much in practice.

Two legislative acts related to social security covera-ge were adopted in 1983: The Law on Social Security of Agricultural Workers covering those employed on the basis of service contract and the Law on Social Se-curity of Self-Employed in Agriculture covering those without any service contract with any employer.

The Law No. 3308 on Vocational Education that is re-lated to child labour was adopted in 1986. This law which was amended 12 times up to 2017 covers vo-cational and technical education and training schools and institutions (Art.2). Practices of vocational trai-ning in agricultural started in 1887 with the School of Agriculture, it continued with agricultural vocational high schools under the Ministry of Agriculture until 2006, and finally these schools whose number was already reduced were transferred to the Ministry of National Education in 2006.34 Upon the Council of Ministers decision No. 2005/139 in 2005, the name of Directorates of Agricultural Vocational High Schools was changed as “Directorate of Centre of Agricultural Extension and In-service Training” before becoming “Vocational High Schools of Agricultural Techno-logies” after 2016. Presently these institutions deli-ver training in industrial fruit and vegetable culture, decorative plants and landscape, agricultural instru-ments and machinery and crop farming.35

Theoretically, there is vocational training in the sector of agriculture. Yet, presently there is no link betwe-en this training and children engaged in seasonal migrant agricultural works and no record is available about the existence of this link in the past.

After 1980, during the rule of the military regime the-re was a halt in the process of acceding to internati-onal treaties and legislation making. When transition to democratic regime began, first the European Soci-al Charter which was signed in 1961 was ratified and given effect. In the period of 10 years from 1989 to

2.3.4The Period 1981-2000: Years of Hardship in Working Life

This is a period of a new Constitution as the earlier one. Relative to the earlier period, there was a signifi-cant change in this period regarding both agricultural policies and agricultural workers. With the limitation and even lifting of support to agriculture, the period 1980-1990 is referred to as years of “radical shrinka-ge” where the number of supported crops dropped from 22 to 9.31 The decade 1990-2000 witnessed policies that were more favourable for farmers com-pared to the earlier decade; however, these policies were far from being stable, expansion and contracti-on followed one another.32

Imprints of this approach can be seen in the Consti-tution as well. Differing from the earlier Constitution, the 1982 Constitution is not interested in the labour of the farmer; it adopts as a principle that farmer’s product should be accorded its value, but makes no suggestion as to ways of realizing this. The 1982 Constitution regards farmer as any entrepreneur and assumes that farmer’s only problem is to have his product accorded its real value. Yet, in agriculture, labour-value balance is affected by factors such as weather which are beyond the control of farmers and this varies with respect to crops. Furthermore, there is no mention of agricultural worker. Hence, the focus in this period is not on labour but on output/product and “national economy” in general.

If the farmer is to get the return to his labour by ha-ving his product valued in free market, there is need to introduce legislative and administrative arrange-ments to ensure that the farmer is accorded the real value of his product. Agricultural activities in Turkey in this period takes place mainly in small enterprises33 and producers actually have no say in decision-ma-king mechanisms fixing the prices of products.

In the years following the adoption of the Constitu-tion, firstly the Trade Union Law and the Law on Col-lective Bargaining, Strike and Lockout were amended

54

stand-by agreement with the IMF envisaged a radical and structural transformation in agriculture, and that seeds of change in agriculture in the 2000s were sown in this period.39 The 7th Development Plan says “signi-ficant arrangements have been made to give a more rational character to agricultural support policies” and gives the reason for this change as follows:

“Leaving aside ensuring stability in farmers’ inco-mes with the ongoing support policies, support prices that are above world prices have led to excessive expansion of some crops, emergence of surplus product and high storage costs for the state as a result of excessive purchases.”40

Hence, in this period, the state officializes its poli-cy of reducing support to agriculture with a policy document and declares the abandonment of crop purchase support. Instead, it promises direct income support which will particularly target small farmers. However, it is not clear how this would take place.

As uncertainty with respect to support for the far-mersemerged, the State Planning Organization made the following observation and forecast for tho-se working in agriculture:

“While rural-to-urban migration continues along with its associated problems, 45 per cent of total employment is still in agriculture where producti-vity is low. Unpaid family workers make up about 60 per cent of population working in the sector of agriculture and 80 per cent of these unpaid family workers are women. The share of the age group 12-14 in total agricultural labour force re-mains as 4.5 per cent even after some decline. This share fell to 1.9 per cent in urban areas.”41

Any decision to support agriculture is a decision that concerns almost a half of working population and this means that what they earn is to be determined under liberal policies. The most important commit-ment of this policy document concerning workers is that “Agricultural Labour Code will be enacted for wage earners in agriculture”42 But this commitment is not fulfilled.

1998, 12 ILO and one UN convention were adopted and ratified. Among these the following were direct-ly related to child labour: The UN Convention on the Rights of the Child, Convention No. 123 on Minimum Age (Underground Work), Convention no. 59 on Mi-nimum Age (Industry-Revised), Convention No. 130 on Minimum Age in Admission to Employment and Convention No. 138 Concerning Minimum Age for Ad-mission to Employment.

In 1987, with its report “Our Common Future” (Brundt-land Report) the World Commission on Environment and Development (WCED) promoted the concept “sustainable development” and posed four impor-tant problems to the world one of which is poverty.36 Following this report, the UN Conference on Envi-ronment and Development held in Rio in 1992 drew attention to the importance of social and economic development with special focus on the environment. The second principle in the report points out to the need to grasp the importance of poverty alleviation in efforts to protect and preserve the environment.37 The Agenda 21 Action Plan emerged after this confe-rence. In the context of this plan the United Nations Commission on Sustainable Development was es-tablished in December 1992. It was followed in 1993 by the World Conference on Human Rights, Vienna Declaration and Action Programme on the occasion of the 45th anniversary of the Universal Declaration of Human Rights. On these occasions the importance of development respectful to human rights was stres-sed once more. The principle I.14. in the Declaration calls for setting poverty alleviation as a target stating that “The existence of widespread extreme poverty inhibits the full and effective enjoyment of human ri-ghts”38 All these happen when, at the same time, the International Monetary Fund (IMF) and World Bank asked Turkey to abandon agricultural support prog-rammes.

In terms of its outcomes, this period is assessed with its influence on the next period. It is agreed in general that the 7th Development Plan (1996-2000) published in the last quarter of the period reflected commit-ments made to the IMF and World Bank, that the 1999

55

poverty alleviation as a target, and urged member states to take measures to this end.

The adoption of the Unemployment Insurance Law in 1999, at the end of the period was a development to the interest of workers; yet, there is no possibility of actually implementing this law with respect to both self-employed and agricultural workers.

Boratav describes the 80’ies as the years when “ra-dically negative changes took place in the economic status of working and peasant classes including the-ir shrinking share in national income.”43 Yet, in the same period, the United Nations, of which Turkey is a member, adopted the principle that no development can be realized without respect to human rights, set


Council Directive 91/383/EEC supplementing the measures to encourage improvements in the safety and health

at work of workers with a fixed- duration employment relationship or a temporary employment relationship

C123 Minimum Age (Underground Work) (1965)

Council Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions

applicable to the contract or employment relationship

Law No. 2429 on National and General Holidays *

Law No. 3308 on Vocational Training (Apprenticeship)*

Trade Union Law no. 2821

Law No. 2822 on Collective Bargaining, Strike and Lockout

Law No. 2925 on Social Security of Agricultural Workers

Law No. 2926 on Social Security of Self-Employed in Agriculture

Labor Law No. 1475

Law No. 3146 on the Organization and Duties of the Ministry of Labour and Social Security

Law No. 3186 on the Adoption of the Decree Law (KHK) on the Establishment of Agricultural Marketing Cooperatives and Unions with Some Modifications

1981

1983

1985

1986

1987

1989

UN World Commission on Environment and Development Our Common Future Report

(Brundtland Report)

European Social Charter (1961)

1991

56

The Period 1981 - 2000 (Legislation Approved, Enacted and Repealed): Years of Hardship in Working Life

57

Special Session of the UN General Assembly (Earth Summit +5)

C77 Medical Examination of Young Persons (Industry) (1946)

C130 Minimum Age for Admission to Employment (1973)

C29 Forced Labour (1930)

C138 Minimum Age for Admission to Employment (1973)

Council Directive 94/33/EC on the protection of young people at work

C158 Termination of Employment (1982)

UN Convention on the Rights of the Child (1989)

C142 Human Resources Development (1975)

C144 Tripartite Consultation (International Labour Standards) (1976)

Declaration of the UN Conference on Environment and Development (RIO Declaration) and Agenda 21 Action Plan

World Conference on Human Rights, Vienna Declaration and Action Programme


Unemployment Insurance Law*

C87 Freedom of Association and Protection of the Right to Organize (1948)

C135 Workers’ Representatives (1971)

C59 Minimum Age (Industry) (Revised) (Revised-1937)

1998

1993

1994

1997

1999

1992

58

on. Further, these plans should also take into account migration-triggered changes taking place in labour markets that gained momentum with migration from countries like Bulgaria, Romania, Ukraine, Georgia, Ar-menia and Azerbaijan in the 2000s48 and large influx of people from Syria after 2011.

As a matter of fact, an assessment made in the se-venth year of these policies observes that “since the system of direct income support lying at the centre of World Bank/IMF led agricultural policies are imp-lemented on the basis of proprietorship and land size, it has reached or provided benefit to poor peasants much less than what is claimed.”49 According to this assessment, 51 per cent of direct income support was distributed among 476,000 farmers in 2006 while 2,324,000 farmers, constituting 83 per cent of total, received the remaining 49 per cent, which meant a significant imbalance. Rates were altered over years and finally the system was suspended in 2007, leaving its place to farmer registration system. It now consists of fuel and fertiliser support extended again according to land size and crop-based support in hazelnut.50

The importance of these policies with respect to emp-loyment and particularly to child labour is that they neglect the fact that farmers cannot foresee how much they would eventually gain as they have no control or negotiation power on cost items including inputs like fuel, fertilisers, agricultural chemicals, ele-ctricity, seed and machinery. Consequently, they exert excessive pressure on labour cost as the only domain where farmers believe to have a say in the production process when seeking to minimise production costs. Indeed, most agricultural inputs other than labour are dependent to global markets and their prices are determined at global level. This is also true for small farmers that live on subsistence economy and main-ly based on family labour. It is therefore important for people employed in agriculture to have their legal sa-feguards.

2.3.5The Period 2001-2018: Agricultural Sector is Still Invisible in Working Life

This period started with the submission of five letters of intention by governments to the IMF and World Bank stating the commitment to alter agricultural support policies and shift to the policy of direct in-come support. The submission of a letter of intenti-on to the World Bank on 10 March 2000 and direct World Bank scrutiny over the Agricultural Reform Implementation Project is considered as an important characteristic of this period.44 Then, the decision of the Council of Ministers to replace support policies and instruments adopted before 2000 with direct income support was given effect upon its publication in the Official Gazette.45 With this decision, direct income support and farmer registry system are put to practice in eight districts of four pilot provinces: Polatlı (Anka-ra), Serik, Manavgat (Antalya), central district, Kahta (Adıyaman), Akçaaba and Sürmene (Trabzon).

Within the framework of Common Agricultural Policy (COP) pursued by the European Union, this period is characterised by the following: transition from produ-ction focused to product focused model in agricultural support schemes; integration of agricultural support to the Single Payment Scheme as of 2012; terminati-on of policies like direct income and export support; transfer of funds to rural development initiatives; and increase in support schemes not related to producti-on.46

While engaging in a plannification of this nature, one would normally expect to foresee the impact of in-terventions to agricultural sector not only on national economy but also on employment and workers’ rights and to implement legislative and administrative me-asures to protect people working in agriculture, as a disadvantaged group, from negative consequences. Hence it is crucial to take a look at the legislation of the time and check to want extent it meets this expectati-

59

The programmes of the United Nations on poverty alleviation yielded any strong effect neither on inter-national policies nor on domestic legislation in the 2000s as was the case in the period 1980-2000. Yet, recognition of the relationship between development and ending poverty as well as regarding its financing as a common responsibility, should have strengthe-ned international cooperation in this area. However, it is unfortunate that relations of production and mar-keting among traders, farmers and workers seemed totally unaffected by this wind.

It is also the period when Turkey was engaged in EU accession negotiations. In line with the atmosphere of this process first the Labour Code No. 4857 took effect in 2003 and many regulations were issued.53

As a branch of economic activity, agriculture was inc-luded in the Labour Code for the first time in 2003. However seasonal agricultural works or a large part of agricultural workers practically remain out of the scope of this law since it only covers those enterpri-ses employing more than 50 workers. As can be seen in Tables 5 and 6, the legislation on this issue is quite dispersed. Still some articles in the Labour Code are applicable to agricultural enterprises (Table 14).

While agricultural enterprises employing 51 and more workers will be regulated by the Labour Code (No. 4857), others employing less than 50 will be subject to the Code of Obligations (No. 6098). The Labour Code also makes a distinction between temporary and continual work and envisages the application of the Code of Obligations in the former. But there is an exception to this rule. Those provisions of the Labour Code relating to such fundamental rights as working periods, minimum age in employment, pro-hibitions on child employment, paid weekly rest and other paid leaves are to be applicable to “temporary works” as well. Further, there is no distinction of tem-porary and continual works when it comes to inspe-ctions to be conducted on enterprises operating un-

As was the case in the earlier period, also in this one, agricultural policies of Turkey underwent changes un-der the supervision of the IMF and World Bank whi-le the United Nations kept its efforts for sustainable development. The 2000s started with the adoption of the “Millennium Declaration” at the UN General As-sembly held on 6-8 September 2000 with the partici-pation of 189 countries. The Millennium Development Goals include:

(1) Taking 1990 as baseline, reducing by half the proportion of people living on less than a dollar a day and reducing by half the proportion of people who suffer from hunger until 2015.

(2) Ensuring that all boys and girls complete a full course of primary education until 2015.51

This was followed first by the Doha Development Round in 2001 and then in 2002, development was declared as a common responsibility of all with the Conference on Financing for Development (Monter-rey Consensus) held in Mexico, urging the US and EU countries to support the financing of development. Si-milar remarks were repeated in the Johannesburg Do-cuments of 2002. The 48th Paragraph of the outcome document of the 2005 World Summit states:

“These efforts will also promote the integration of the three components of sustainable development –economic development, social development and environmental protection – as interdependent and mutually reinforcing pillars. Poverty eradication, changing unsustainable patterns of production and consumption and protecting and managing the na-tural resource base of economic and social deve-lopment are overarching objectives of and essential requirements for sustainable development.”52

The outcome document of the 2012 UN Sustainable De-velopment Conference (Rio+20) draws attention to the importance of the relationship between poverty eradi-cation and sustainable development.

60

UN Covenant on Economic, Social and Cultural Rights (1966)

Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the

organization of working time

C153 Hours of Work and Rest Periods (Road Transport) (1979)

legislative text in matters such as prohibition of emp-loyment and minimum age. Moreover, some of these legislative acts are not essentially related to employ-ment such as the Law on Public Health and Law on Police Duties and Authorities. This scattered nature of the legislation makes both identifying the principle and inspecting compliance difficult.

der the Labour Code (Articles 91, 92, 93). Therefore, although seasonal agricultural works are considered as temporary, agricultural enterprises employing 51 or more workers are subject to labour inspection. The remaining falls in the jurisdiction of the Code of Ob-ligations when breach of contract provisions occurs. In addition to this duality with respect to the main roof there are also arrangements in more than one

Article Title Article No. Condition of Applicability

Wage and its remuneration Article 32

No conditionProtected portion of the wage Article 35

Wage account slip Article 37

Deduction of fine from wage Article 38

Work during maternity and nursing leave Article 74 (Additional paragraph: 29/1/2016-6663/Art.22)

“to be employed on work contract”

Table 14. Labour Code Provisions Applicable to Agricultural Workers

Table 15. Conventions and Laws Taking Effect in 2001 and Afterwards

200

0

UN Millennium Development Goals

European Commission Recommendation 2000/581/EC

C 182 Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour

(1999) 2001

2003

Law No. 4572 on Agricultural Marketing Cooperatives and Unions

Labour Code No. 4857*

Law no. 4904 on Turkish Employment Agency *

61

C155 Work Safety and Health (1981)

200

420

05

2011

Revised European Social Charter

C187 Promotional Framework for Occupational Safety and Health (2006)

200

620

08

2012

200

9

Directive 2008/104/EC of the European Parliament and of the Council on temporary agency work

Sustainable Development Conference Declaration (RİO+20)

Law No. 5403 on Soil Protection and Land Use *

Code of Obligations No.6098 *

Circular 5410 dated 20 April 2011 on the Education of Children of Seasonal Migrant Agricultural Workers (MoNE)

Law No. 5502 on Social Security Institution *

Law No. 5510 on Social Security and General Health Insurance *

Work Safety and Health Law No. 6331 *

Law No. 6356 on Trade Unions and Collective Bargaining *

Circular 2012/20 on the Prevention of Child Labour (Ministry of Family and Social Policies-MoFSP)


62

The Period 2001 - 2018 (Legislation Approved, Enacted and Repealed): Agricultural Sector is Still Invisible in Working Life

63

Notes

1 Sayın, A.K. (2013). ILO Normlarının ve Örgütün Denetim Mekanizmasının Türk İş Hukukuna Etkisi. ÇSGB Çalışma Dünyası Dergisi, 1(1), 11-34. www.calismadunyasi.gov.tr/pdf/sayi1/01.pdf

2 İbid.

3 Oral, N. (2013). Türkiye’de Tarımın Ekonomi Politiği 1923-2013. Ankara: Nota Bene Yayınları, sf. 449.

4 TÜİK Haber Bülteni, 11.09.2017, Sayı: 27817.

5 3.10.2001 tarih ve 4709 sayılı Kanun md. 21

6 www.adalet.gov.tr/duyurular/2011/eylul/anayasalar/1982ilkson.pdf

7 Boratav, K. (1997). Türkiye Tarihi 4: Çağdaş Türkiye 1908-1980. Cem Yayınevi, sf.283

8 İbid., sf.287

9 Tuncay, M. (1992). Türkiye Cumhuriyeti’nde Tek Parti Yönetiminin Kurulması (1923-1931). Cem Yayınevi, sf. 189

10 İbid., sf. 190

11 “Tithe” (Aşar): “Aşar” means “one-tenth” in Arabic and denotes the tax imposed upon a specific portion of the total produce of a farmer during the time of the Ottoman Empire (www.tdk.gov.tr). However, the tax rate was not fixed as 10% and it varied by crops and years. http://www.nkfu.com/asar-nedir-asar-vergisi-nedir

12 Tuncay, M. (1992). Türkiye Cumhuriyeti’nde Tek Parti Yönetiminin Kurulması (1923-1931). Cem Yayınevi, sf. 192


14 Zorlu, M. (2014). Milli Korunma Kanunu Versus 3008 Sayılı İş Kanunu: Emeği Denetim Altına Alan ve Sermaye Birikimini Destek-leyen Bir Kanun, Sosyal Güvenlik Dergisi 4(1), sf. 124

15 Kuruç, B. (1988). Belgelerle Türkiye İktisat Politikası 1. Cilt (1929 – 1932). Ankara, sf. 204

16 İbid.


18 Uşan, M.F. (2003). Yargıtay Kararları Işığında İş Kanunu Açısından Tarım İşleri. Kamu – İş D. 7(2), sf. 2

19 İbid., sf.125

20 İbid., sf.119

21 Zorlu, M. (2014). Milli Korunma Kanunu Versus 3008 Sayılı İş Kanunu: Emeği Denetim Altına Alan ve Sermaye Birikimini Destek-leyen Bir Kanun, Sosyal Güvenlik Dergisi 4(1), sf. 119

22 Çamurcuoğlu, G. (2009). Türkiye Cumhuriyeti’nin Toprak Reformu ve Milli Burjuvazi Yaratma Çabası. Gazi Üniversitesi Hukuk Fakültesi Dergisi, 12(1-2), sf. 161 webftp.gazi.edu.tr/hukuk/dergi/13_7.pdf

23 Karaömerlioğlu, M.A. (1998). Bir Tepeden Reform Denemesi: Çiftçiyi Topraklandırma Kanununun Hikayesi. Birikim Dergisi 107, sf.31-47

24 İbid.


64

26 İbid. sf. 318

27 İbid. sf. 319



29 Sarıbeyoğlu Skalar, M. (2015). Uluslararası Hukuk ve Sürdürülebilir Kalkınma: Kavram, İlkeler ve Yargısal Uygulama, İstanbul: Beta Yayınları, sf. 24


31 Oyan, O. (2013). Tarımda IMF – DB Gözetiminde 2000’li Yıllar. Editör: Oral, N. Türkiye’de Tarımın Ekonomi Politiği, sf.114

32 İbid.

33 “The number of agricultural enterprises which was 3,434,000 according to the Agricultural Census of 1980 increased to 4,092,000 in 1991. 99 per cent of these enterprises have plots smaller than 50 hectares. The share of enterprises smaller than 5 hectares in total enterprises which was 61.1 per cent in 1980 increased to 65.4 per cent in 1991.” 7. Five Year Development Plan, p.57

34 www.tarim.com.tr/Tarim-Liseleri-Gelecegin-Tarim-ve-Ziraat-Muhendislerini-Yetistirmeyi-Hedefliyor,38552h

35 www.mesleklisesi.net/meslekbolumleri/index.php/topic,677.0.html?PHPSESSID=fb8hmo2gvmmehdu6o4fpgod3f4



38 İbid., sf. 44


40 7. Beş Yıllık Kalkınma Planı, sf. 57



43 Boratav, K. (1997). Türkiye Tarihi 5: Bugünkü Türkiye 1980-1995. Cem Yayınevi, sf.181


46 Resmi Gazete 14.03.2000 Sayı:23993 01.03.2000 tarih ve 2000/267 sayılı Kararname

47 TOBB Türkiye Tarım Sektörü Raporu 2013, sf.77

48 Lordoğlu, K. (2015). Türkiye’ye Yönelen Düzensiz Göç ve İşgücü Piyasalarına Bazı Yansımalar. Çalışma ve Toplum Dergisi, 1, sf. 32

65


50 Ibid., sf.123-124


52 İbid., sf. 60

53 “Some of these regulations are on: Occupational Health and Safety, Safety and Health Indicators, Health and Safety in Cons-truction Works, Protection of Persons Working in Explosive Environments, Health and Safety Measures in Works where Chemical Substances are Used, Health and Safety Measures in Works where Asbestos is Used, Health and Safety Measures in Buildings and their Annexes, Use of Personal Protective Equipment at Workplaces, Health and Safety Conditions in using Work Equipment, Health and Safety Conditions in Underground and Surface Mining Enterprises, Occupational Health and Safety Committees, Principles and Procedures Relating to the Employment of Children and Young Workers, Health and Safety in Temporary Employment or Emp-loyment for a Definite Period, Heavy and Hazardous Works, Personal Protective Equipment, Duties, Authorities, Responsibilities and Training of Work Safety Experts, Occupational Health and Safety Survives” Çiçek, Ö., Öçal, M. (2016). Dünyada ve Türkiye’de İş Sağlığı ve İş Güvenliğinin Tarihsel Gelişimi. Emek ve Toplum Dergisi, 5(11), p.127

66

LEGISLATIVE ARRANGEMENTS RELEVANT TO SEASONAL MIGRANT CHILD WORKERS IN AGRICULTURE

3

67

This part analyzes legislative arrangements related to seasonal migrant children working in agriculture un-der five headings within the framework of the interna-tional legislation and domestic laws that are in effect:

(1) Minimum age in employment

(2) Working time and leaves

(3) Remuneration

(4) Social security

(5) Right to organize

Before starting the analysis on the basis of these headings it is important to give explanations to the following concepts first: Agricultural work, seasonal work, agricultural worker and seasonal agricultural worker.

There is no definition of agricultural work in the leg-islation, but what can be considered as agricultur-al work with respect to the implementation of the Labour Code is provided for by the Regulation on Works in Industry, Trade, Agriculture and Forestry.1

Accordingly the following are considered as agricul-tural works:

All types of work on soil, growing, sowing, plant-ing, grafting, irrigating, fertilizing, harvesting, cleaning, processing and sifting; combating plant diseases and pests; operation of irrigation system by irrigation unions on the basis of cost sharing; land protection; conservation of pastures, mead-ows, land and water sources involving all types of plants with or without fruit; tea, cotton, tobacco and fibre plants; citrus fruit; rice and pulses; trees, shrubs, vine stock, seed, seedling and sapling; veg-etables and field crops; fodder crops and decora-tive plants.

Breeding, production, rehabilitation and genetic improvement of all kinds of draft and milk-meat animals; related works of care, shepherding, do-mestication and shearing; collection and storage of products obtained and combat against animal diseases and parasites.

68

In addition to all these, there is also multiplicity of legislative acts that agricultural workers are to be subject to. Depending on their periods of employ-ment and employment environments, agricultural workers may fall in the domain of the Labour Code or Code of Obligations.

The Code of Obligations addresses employment rela-tions in the context of service contract and does not provide for any specific protection to labour status since working conditions are to be specified by service contracts. Further, the settlement of disputes arising from these contracts rests with courts as cases of le-gal dispute. Yet the enforcement of the Labour Code is subject to various inspection procedures including those by the Ministry of Labour and Social Security.

The Labour Code No. 4857 specifies that its provisions are not applicable to agricultural enterprises employ-ing less than 50 workers (Art.4/I.b). Many provisions of the Code are not applicable also in works that take 30 days the longest (Art.10). Yet, provisions in articles 34 to 38 of the Code relating to wages are applicable to agricultural workers regardless of enterprise size and duration of work (Art. 113).

Consequently, for agricultural workers to benefit from all provisions of the Labour Code:

Their workplaces must be engaged in one of the activities specified in the Regulation on Works in Industry, Trade, Agriculture and Forestry,

There must be at least 51 workers employed in the enterprise, and

Employment must last for at least 30 days.

Yet, there is almost no agricultural enterprise satisfy-ing all these. Data related to average size of agricul-tural enterprises in the country as found by various studies confirm this. According to a study:

“Hazelnut culture takes place not in large but in small enterprises. The distribution of hazelnut culture areas according to Ordu Province Farmer Registration System (FRS) for the period 2007-2008 shows that 47 per cent of enterprises have

In classifying a work as seasonal, the criterion is that work takes place only in some parts of the year. But it does not mean that all activities must stop in the rest of the year. Works that require large scale employ-ment in a specific period of the year and cease in the rest of the year with only small number of workers employed are also considered as seasonal.2

However, the Supreme Court resolves that, when seasonal works are concerned, in case an agricultur-al worker acts a contract every year with the same employer, it must be considered as the existence of a single contract of indefinite period between the par-ties and that the period not worked must be consid-ered as a time when the contract is in suspension.3 This opinion of the Court is important with respect to the termination of work contract. A worker who has worked at the same workplace regularly every year is entitled to severance and notice pay in case his contract is terminated unfairly.

It is also stated that any seasonal work can last for 6 months the longest and cannot be considered as seasonal if it is longer. It goes on that work contracts should be categorised as with definite or indefinite pe-riod depending on how long the work is performed.4 It is acknowledged that repetitive work at the same enterprise should be subject to work contract of in-definite period where contract is not to terminated but suspended upon the completion of a specific work.

Definitions of neither agricultural worker nor season-al agricultural worker exist in the legislation. In the relevant literature agricultural worker is defined as a “real person working in agricultural activities on the basis of a contract and as subject to an employer.”5 It is required that contract is acted by “middleman, worker and employer”6 and it is in written form “in case its du-ration is longer than one year.”7 Together with the term “migrant” the term “seasonal” is used to denote work-ers coming in from different provinces while workers who are inhabitants of the same province are referred to as “temporary-daily”.8 The Labour Code defines works that last shorter than 30 days as “transitory” and longer period works as “continual” (Art.10).

69

for the implementation of this article, States Parties shall (Art.32/2);

(a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

(c) Provide for appropriate penalties or other sanc-tions to ensure the effective enforcement of the pres-ent article (Art 32/c).

UN Convention on the Rights of the Child

Article 32: States Parties recognize the right of the child to be protected from economic exploita-tion and from performing any work that is likely to be hazardous or to interfere with the child’s ed-ucation, or to be harmful to the child’s health or physical, mental, spiritual, moral or social devel-opment.

States Parties shall take legislative, administra-tive, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:

- Provide for a minimum age or minimum ages for admission to employment;

- Provide for appropriate regulation of the hours and conditions of employment;

- Provide for appropriate penalties or other sanc-tions to ensure the effective enforcement of the present article.

While the Convention defines all persons under age 18 as child, it does not stipulate this age as a condition for participating to working life. Though it accepts set-ting an age under 18 for admission to employment, it leaves it to States Parties to determine that age with due account of developmental needs of children.

plots smaller than 20 decares and 92 per cent have plots smaller than 50 decares. The average size of plots in Ordu province is 24 decares.”9

The following observation by Öz and Bulut (2013) succinctly summarises the outcome of having no specific legislation:

“As can be seen, agricultural workers left out of the coverage of Labour Code cannot enjoy such rights as acting contract, wage fixing, termina-tion of contract, weekly and annual leave, sick-ness leave, sanctions in work safety and health, etc. Working hours are extended beyond normal working hours in violation of the Labour Code. Since family is a working unit, children and ado-lescents are employed again in violation of pro-hibitions introduced by legislation. Even worse, even in enterprises employing more than 50 workers, seasonal workers still remain as informal since they are employed temporarily in different works. (MSG Board of Editors, 2010, 4).”10

3.1Legislative Arrangements Related to Mini-mum Age in Employment

3.1.1International Arrangements Related to Minimum Age in Employment

When children are concerned, the first source to look for identifying legislative framework is the UN Con-vention on the Rights of the Child. According to this convention all persons under age 18 are to be consid-ered as child (Art.1) and children “are to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social de-velopment.” (Art. 32/1). While adopting relevant legal, administrative, social and education related measures

70

3) National laws or regulations may also permit the employment or work of persons who are at least 15 years of age but have not yet completed their compulsory schooling on work which meets the requirements set forth in sub-paragraphs (a) and (b) of paragraph 1 of this Article.

In paragraph 1 of Article 7 providing for the right of children and adolescents, the European Social Char-ter asks States “to provide that the minimum age of admission to employment shall be 15 years, subject to exceptions for children employed in prescribed light work without harm to their health, morals or ed-ucation”; and in 2nd paragraph, “to provide that the minimum age of admission to employment shall be 18 years with respect to prescribed occupations re-garded as dangerous or unhealthy.”

However, it is not specified what these occupations are. Thus, for the provision to be implemented, there is need to list these occupations or to identify risks on the basis of trades. Persons under age 18 to be em-ployed in occupations identified by domestic legis-lation must be given medical examination in recruit-ment and medical examinations should be repeated in regular intervals (Art.7/9). It is reported that the Euro-pean Committee on Social Rights considers intervals of 3 years for these examinations too long and exam-inations should focus on specific situations of children and especially on risks they are exposed to.11

This kind of listing is necessary not only for heavy and hazardous works but light ones as well. It is stated that the Committee commented in the case of Netherlands that the work of children at age 15 in distributing daily papers for two hours starting from 6 a.m. is not in compliance with the European Social Charter.12

The Directive 94/33/EC on the Protection of Young People at Work13 requires States Parties to ensure that “the minimum working or employment age is not lower than the minimum age at which compulsory full-time schooling - as imposed by na-

Taking a look at other international arrangements related to age in employment, the ILO Convention No. 10 Concerning Minimum Age in Agriculture that Turkey is not a State Party to prohibit the employ-ment of children under age 14 in agriculture (Art.1). However, the ILO Convention No. 138 Concerning Minimum Age for Admission to Employment “has generalized and updated all minimum age conven-tions that separately set minimum ages in sea, agri-culture, trimming and stoking, non-industrial works, industry, fishing, works involving radiation, and un-derground mines.” Consequently, the minimum age for employment in agriculture is made subject to the provisions of the Convention No. 138.

This Convention calls States Parties to pursue “a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.” (Art. 1) This Convention too requires that minimum age set by States Parties should coincide with the age that compulsory education ends and, in any case, not be-low age 15. However, the Convention also allows for some exceptions:

1) Notwithstanding the provisions of paragraph 3 of this Article, a Member whose economy and educational facilities are insufficiently developed may, after consultation with the organizations of employers and workers concerned, where such exist, initially specify a minimum age of 14 years.

2) National laws or regulations may permit the em-ployment or work of persons 13 to 15 years of age on light work which is not likely to be harmful to their health or development; and not such as to prejudice their attendance at school, their partic-ipation in vocational orientation or training pro-grammes approved by the competent authority or their capacity to benefit from the instruction received.

71

“protect children from any specific risks to their safe-ty, health and development which are a consequence of their lack of experience, of absence of awareness of existing or potential risks or of the fact that young people have not yet fully matured.” Besides the pro-hibition of these works to children, any work that children maybe potentially employed should also be assessed by referring to this criterion. The Directive prohibits the employment of children in:

work which is objectively beyond their physical or psychological capacity;

work involving harmful exposure to agents which are toxic and carcinogenic;

work that may cause heritable genetic damage, or harm to the unborn child or which in any other way chronically affect human health;

work involving harmful exposure to radiation;

work involving the risk of accidents which it may be assumed cannot be recognized or avoided by young persons owing to their insufficient atten-tion to safety or lack of experience or training;

work in which there is a risk to health from ex-treme cold or heat, or from noise or vibration.

tional law - ends or 15 years in any event.” (Art. 1/1/b). Exceptional cases in which the Directive may not be implemented include the following14:

Works that are for short periods of time, within family or in family enterprises that are not haz-ardous for young persons.

Works which, by their nature and specific circum-stances of their performance, do not have any harmful effects on the development, health and safety of children and do not interfere with their school attendance, vocational training or partic-ipation to other training programmes approved by authorities.

Cultural, artistic, sportive or advertisement activ-ities to be separately specified for each (There is need to get permission from a specified authority in these cases).

For those over at least age 14, works in which la-bouring goes together with education and train-ing or at-the-site learning programmes.

Article 7 in the same Directive identifies works that children and young people cannot be employed. While identifying these works the main criterion is to

Date of Adoption

Date of Ratification International Conventions


Minimum Age in Employmentin Agriculture

31.08.1923 Turkey is not State Party

ILO Convention No. 10, Minimum Age for Children Employed in Agriculture

14

18.10.1961 16.06.1989 European Social Charter 15 Not specified

06.06.197323.01.1998 ILO Convention No. 138 Concerning Minimum Age for Admission

to EmploymentAge at which compulsory education ends - 15 in any case

14.09.1990 09.12.1994 UN Convention on the Rights of the Child Not specified Not specified


15 No specific arrangement

17.06. 199925.01.2001 ILO Convention No. 182 Concerning the Prohibition and Immedi-

ate Action for the Elimination of the Worst Forms of Child Labour 18 in hazardous industrial works

18 in seasonal migrant agricultural works

Table 16. Provisions in International Conventions Related to Age in Employment

72

and manufacturing shops or in mining works.” (Art.173).

Though this provision remains behind our present day standards it still indicates a level of sensitivity concerning the employment of children at that time.

The Primary Education and Education Law No. 222 dated 1961 arranges for two situations in its Article 59:

Those who are at primary schooling ages but not attending any compulsory education institution cannot be employed at any public or private en-terprise either for wage or otherwise.

Those who document their enrolment to primary education institutions can be employed at such enterprises only out of school hours and in full compliance with legislative provisions arranging the conditions of employment of children.

Compulsory education “covers children in the age group 6-13. This period starts at the end of Septem-ber that the child completes age 5 and ends at the end of the school year that the child completes age 13 and steps into age 14.” (Art.3). After an amendment made in 201216, in the Fundamental Law on National Education17 it is stated that “Primary education insti-tutions consist of 4-year compulsory primary schools and 4-year general and religious secondary schools that offer options between compulsory and different programmes.” (Art.25). Further, secondary educa-tion was also made compulsory thus making educa-tion compulsory from age 6 to age 18.

The ILO Convention No. 182 Concerning the Pro-hibition and Immediate Action for the Elimination of the Worst Forms of Child Labour covers areas of work that are harmful to children in all circum-stances. Besides many such areas, work “which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children” is also considered as covered by this con-vention (Art.3). Under this Convention, Turkey rec-ognized child labour in seasonal migrant agricultural works as the worst form of child labour.

3.1.2National Arrangements Related to Minimum Age in Employment

In international law, the objective of setting mini-mum age for employment is to protect children: “(…) from economic exploitation and from performing any work that is likely to be hazardous or to inter-fere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.” 15 Hence, any evaluation re-garding national legislation must seek compliance in this regard.

The first general provision in the republican period related to age in employment can be found in the Law on Public Health that took effect in 1930. Under this legislation:

“It is prohibited to employ any children under age twelve as worker or apprentice in factories

Date of Taking Effect Law


Minimum Age in Employment in Agriculture

06.05.1930 Public Health Law No. 1593 12 No specific arrangement

15.06.1936 Labour Code No.3008 (Repealed by the Law No. 1475) 12 No specific arrangement

01.09.1971 Labour Code No.1475 (Repealed by the Law No. 4857) 12 + report No specific arrangement

22.05.2003 Labour Code No. 4857 14 - 15 - 18

Table 17. National Legislative Arrangements Related to Minimum Age in Employment

73

hinder their physical, mental and moral develop-ment, and for those who continue their educa-tion, in jobs that will not prevent their school at-tendance. What can be considered as light works are provided by the relevant regulation.

The Regulation on Procedures and Principles Re-lating to the Employment of Child and Young Workers and its annexes which is based on the La-bour Code No. 4857 introduces three categories in the context of works that children may be employed after age 14. According to this arrangement, works in which children can be employed in agriculture and animal husbandry vary with respect to ages of 14, 15 and 16 (Table 18).

Accordingly, children;

1) Can be employed only in those works that are ex-plicitly stated as so.

In general, arrangements in the labour code of Tur-key are in compliance with provisions set by inter-national conventions. As can be seen in Table 17, it is required that minimum age in employment should coincide with the end of compulsory schooling age and not less than 15 though with some exceptions.

Under the Labour Code No. 4857, employment of children who have not completed age 15 is prohibit-ed. However, this rule has two exceptions in regard to age (Art. 71):

1) Children who have not completed age 14 of four-teen may be employed in the artistic, cultural and advertising activities that will not hinder their physical, mental and moral development and that will not prevent their school attendance, on con-dition that a written contract is entered and per-mission is obtained for each activity separately.

2) Children who have completed age 14 and their primary education on light works that will not

Type of Work

Age

14 15 16 17 18

Picking fruits, vegetables and flowers except in circumstances that pose the risk of falls and injuries X X X X X

Ancillary works in poultry farming and in sericulture X X X X X

Flower marketing and decoration works X X X X X

Drying and processing fruits and vegetables X X X X

Processing tea X X X X

Preparation of various types of dried fruits X X X X

Flower culture except medication and fertilizing X X X X

Spinning and weaving works given that workplaces have climatization and aspiration facilities and separated from rubbles as well as willowing, combing and starching operations on cotton, flax, silk and other materials.

X X X X

Pre-production work in sugar plants X X X X

Bagging, barrelling, piling and other similar works that do not require lifting of weights heavier than 10 kilograms without machinery

X X X X

Combing out and shredding feather and hair from birds and animals and other similar works X X X

Works in cereals stores, flour and paddy plants X X X

Table 18. National Legislative Arrangements on Minimum Age in Employment in Agriculture and Animal Husbandry

74

Wholesale or retailing of inflammable, explo-sive, hazardous and harmful materials; pro-ducing, processing and storing of such mate-rials and all others works involving exposure to,

Work environments where there is high noise and/or vibration,

Work in extremely hot or cold environments,

Working with substances hazardous to human health and may lead to occupational diseases; exposure to radioactive substances and harm-ful rays

Works that require extreme attention and continuous standing on foot,

Piece rate payment and payment on premium system

No possibility of returning home or to family after workday with the exception of educa-tion-training related works.

Works that are found by workplace health staff as beyond physical and psychological capacity of children,

Works that may entail lack of appropriate at-tention for safety due to insufficient experi-ence and training,

Money carrying and collection works,

Works that are performed at night as stated in paragraph 1 of Article 59 in the Labour Code No. 4857.

d. Finally, employers have to ensure the protection of children from risks that may jeopardise their development, health and safety due to their un-awareness or state of not being fully developed.

Employment without being subject to these limita-tions can be possible only in the context of vocation-al training. The Regulation on Procedures and Princi-ples Relating to the Employment of Child and Young Workers envisages limitations that we gathered un-der two headings above:

As can be seen in Table 18, this arrangement includes nothing at all regarding seasonal migrant agricultural workers. Still, children cannot be employed in works other than those listed in this table. This is the first important limitation.

2) Children can be employed in works that are ex-plicitly stated as so only if necessary conditions are satisfied.

Going over addendum to the regulation, we see that there are agricultural works in which persons over age 14 can be employed (Table 18). However, this does not mean that children over age 14 can be em-ployed in, for example, picking flower where there is no risk of falling. While the regulation considers some works as light, it still brings some rules to employing children in these light works. Hence, this arrange-ment does not mean that children at age 14 can be employed in all types of flower picking work even if there is no risk of falling and getting injured. The fol-lowing conditions have to be met for employing chil-dren at relevant age in works given in Table 18:

a. Safety, health, physical, mental, moral and psy-chosocial development needs, personal capacity and competence of children must all be consid-ered in their placement to jobs and throughout the period of employment.

b. When school children are concerned, their work should not interfere with the following:

School attendance and performance,

Preparations related to choosing an occupa-tion,

Participation to vocation training courses au-thorised by the Ministry of National Education.

c. Further, the list should exclude the following works that can be done only by those over age 18:

Completion and cleaning works,18

Production and wholesale marketing of alco-hol, tobacco products and other substances that may cause addiction,

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Though the provisions of this law find it sufficient to have completed age 14 to be employed in the context of apprenticeship, this rule has no applicability in the sector of agriculture.

3.1.3Evaluation of Legislative Arrangements Related to Minimum Age in Employment

The ILO Convention No. 138 Concerning Minimum Age for Admission to Employment stipulates that minimum age in employment shall not be less than the age of completion of compulsory schooling and, in any case, not be less than 15 years. While acceding to the ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elim-ination of the Worst Forms of Child Labour, Turkey identified seasonal migrant agricultural works as the worst form of child labour and envisaged minimum age as 18. The minimum age specified in pursuance of paragraph 1 of this Article shall not be less than

Conditions relating to ages and fields of work specified in the regulation,

Conditions of work and measures that employer has to take.

Young workers above age 16 who have completed vocational and technical education schools and in-stitutions under the Vocational Training Law No. 3308 can be employed in works commensurate with their occupations and fields of expertise without be-ing subject to limitations specified in annexes to the Regulation on the condition that their safety, health and morals are fully safeguarded.

Under the original Vocational Training Law, condi-tions for being employed as apprentice consisted of being a primary school graduate at least and over age 13 without having stepped into age 19. Upon an amendment introduced in 2016, the condition relat-ed to age was removed and educational background was changed as secondary school meaning that ap-prentices must have completed age 14.

Date of Adoption

Date of Ratification/Taking effect International Convention


Minimum Age in Employment in Agriculture

31.08.1923 Turkey is not State Party

ILO Convention No. 10 Concerning Minimum Age for Children Employed in Agriculture

14

06.05.1930 Public Health Law No. 1593 12 No specific arrange-ment

18.10.1961 16.06.1989 European Social Charter 15 Not specified

06.06.197323.01.1998 ILO Convention No. 138 Concerning Minimum Age for Admission

to Employment Age at which compulsory education ends – 15 in any case

14.09.1990 09.12.1994 UN Convention on the Rights of the Child Not specified Not specified


15 No specific arrange-ment

17.06. 199925.01.2001 ILO Convention No. 182 Concerning the Prohibition and Immediate

Action for the Elimination of the Worst Forms of Child LabourSeasonal migrant agricultural works18

22.05.2003 Labour Code No. 4857 14 - 15 - 18

Table 19. Comparison of Legislative Arrangements on Minimum Age in Employment

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There is no specific arrangement relating to agricul-ture and in particular to seasonal migrant agricultur-al labour. Neither the Regulation on Procedures and Principles relating to the Employment of Child and Young Workers that indicates works that children can be employed can fully bring clarity to the issue. The regulation, in its appendices, does mention some agricultural works while referring to children, but in-troduces no specific arrangement related to migrant workers. Since this arrangement does not explicitly refer to the status of being migrant, it can lead to the conclusion that children cannot be employed in seasonal migrant works; but it is also possible to reach the conclusion “since the regulation makes no arrangement related to the form of employment and suffices with listing branches of work, then children can be employed, in specified branches, in case their age allows for.” The absence of any guarantee on minimum age in practical terms is criticised by the European Committee on Social Rights in its report on Turkey.19 The existing legislative arrangement is not capable of protecting children from economic exploitation in terms of age.

Studies show that 70 per cent of local and 73 per cent of migrant agricultural workers started this work before age 15. Taking working children, it is observed that the rate of employment in agriculture gets high-er as age gets smaller.20 16 per cent of local workers and 20 per cent of migrant workers started this work while they were in the age interval 16-25. The com-mon nature and importance of employing children in this sector becomes clearer given that the percent-age of those starting to work in this sector after age 25 is only 5 per cent or lower. 21

“According to survey data, interviews with workers and observations, children spend a part of their child-hood by working since their families have no place to leave their children when they go out to fields or orchards to work. Children of families engaged in mi-grant seasonal agricultural works as a means of sub-sistence say that they can attend school only for few

the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.

In national legislation, compulsory education consists of primary and secondary education, it starts at age 6 and is completed in 12 years. Hence, the age at which compulsory education ends is 18. At this point, how-ever, there is disharmony between the Fundamental Law on Education and the Labour Code which leads to ambiguity. According to the former, compulsory primary education ends when the child is 14 years old while the latter prohibits the employment of children yet not completed age 14.

Secondary education which is a part of compulsory education period covers ages 14 to 18 (Art.25) and the law says secondary education may be in gener-al, vocational and technical education institutions. The gap that leads to a problem is right at this point. While the Labour Code identifies criteria related to age, the condition it stipulates in the context of edu-cational status is “school enrolment and attendance” (Art.71). When the condition “not interfering with school attendance and performance” is combined with the possibility of having secondary education in non-formal education institutions the condition itself gets weaker with respect to its preventive character.

After formal education ceased to be compulsory in secondary education, it became easier to engage in child labour. As for children in compulsory formal education, they may be in crop fields even when schools are open, indicating that the compulsory na-ture of education cannot provide sufficient protec-tion by itself.

As can be inferred from above, the legislation relating to children’s ages in employment is not easily com-prehendible. The Law on Police Duties and Author-ities debates the issue of minimum age in practice as a result of such factors as arrangements for some branches of work, ambiguity about areas where the Labour Code is applicable and specification of differ-ent ages in various conventions.

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The Ordu Governorate Provincial Coordination Com-mittee set the minimum age for employment in hazelnut harvesting as 16 for the year 2017.28 There is need to discuss to what extent this decision is in compliance with the legislation. The regulation re-quires, for children to be employed in fruit and veg-etable picking, that there are no such risks as falling and getting injured and no carrying of load heavier than 10 kilogrammes. No child can be employed if these risks exist.

There is no crop-specific risk assessment for chil-dren. In practice, those working on this issue and decision makers in relevant provinces refer to their childhood experiences as workers and assert that some risks are absent in hazelnut farming since there is no use of machinery and any medication (expo-sure to chemicals) at the stage of harvesting. How-ever, the real case seems to be different. In hazelnut, for example, it is reported that young workers often operate threshers separating hazelnut from its husk at age 16-20,29 which pose various risks in safety or citrus fruit harvesting may start in an orchard where chemicals were used just a day before. The absence of crop-based risk assessment makes it difficult to implement the provisions of the Labour Code that associated bans with risks.30

When all these conditions are met and child’s em-ployment comes to the fore, there is still need to “take due account of child’s safety, health, physical, mental, moral and psychosocial development, per-sonal competence and talents in job placement and throughout the period of employment.” The condi-tion of taking account of child’s safety, health and development during his employment covers child’s living environment as well since he is in a specific lo-cation to work. Under the Code of Obligations, the employer is obliged to take measures to protect and respect the personality of his worker and to prevent any psychological and sexual harassment (Art.417). In fact not only children but also adults should not be employed without meeting these conditions.

months in their original settlements and since they move together with their families, they have to drop school or attend distance learning. Data suggest that children cannot live their childhood and have to work at ages of playing due to economic difficulties that their families face.”22

A survey conducted in Çukurova reports that chil-dren as young as 10 can be found in crop fields23:

“While 7 per cent of children in the age group 6-10 actually work in crop fields, it increases to 52 per cent of boys and 60 per cent of girls in the age group 11-14. In the age group 15-18, 91 per cent of children are out in fields working that is 9 out of each 10 adolescents are working.”

The present survey24 conducted in Çukurova where many other crops besides cotton and citrus fruit are grown, found that 63 per cent of families return home and 37 per cent does not. This suggests that there is a significant population for whom life in tents has gained a continuous character; in other words, there is a type of settlement that embodies station-ery and transitory elements together. In the settle-ment area where the present survey was conducted it was found that one in every three persons is un-der age 10; 17 per cent of the community is in the age interval 11-15 and 17 per cent in the interval 16-20, meaning that 63 per cent of persons in this settle-ment are under age 20. Another survey that covered a wider geographical area found that children con-stitute 52 per cent of total people.25 Children who accompany their families in migrant works are de facto engaged in agricultural works even when not employed by any employer. It is reported that for the school year 2016-2017, the number of children of sea-sonal migrant families enrolled to e-School is 22, 414; that there are around 400,000 children engaged in seasonal migrant works; and that these children con-stitute about a half of all working children.26 Children start working, on average, at age 9.4, which is 9.2 in boys and 9.6 in girls.27

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Piece rate payment and payment on premium system,

No possibility of returning home or to family after workday with the exception of education-training related works.

3) With respect to others not listed here, there is need to know the features of the work and work-place and check these against criteria listed in Ta-ble 18 to determine minimum age.

4) Since employment must never interfere with the education of the child, it is not possible to employ children at compulsory schooling ages during school year.

3.2Legislative Arrangements on Working Time and Leaves

3.2.1International Arrangements on Working Time and Leaves

According to the Directive 94/33/EC on the Protec-tion of Young People at Work, working time of chil-dren at age 15 can be 8 hours a day, 40 hours a week and, if not prohibited by domestic legislation, daily 2 hours and weekly 12 hours out of school time. When schools are closed it is daily 7 hours and weekly 35 hours for children who are not subject to compulso-ry education. For each 24-hour period children are entitled to a rest period of 14 hours (it is 12 hours for adolescents).

The Directive prohibits work by children from 8 p.m. to 6 a.m. except for vocational training and cultural activities. For adolescents over age 15 it is forbid-den to work from 10 p.m. to 6 a.m. The Directive also stipulates that when daily work exceeds 4.5 hours children are entitled to take a rest for 30 minutes (Art.10). Children under age 14 must have 14 and ad-

In practice, however, children stay in specified areas or tent camps near work places together with their families and in some cases without the presence of other family members. This kind of settlement means hazards and risks not only in terms of hygiene but others as well like abuse and accidents. When not working in fields, children are observed as fetching water, dish washing and cleaning.31

It is for these reasons that seasonal migrant agricul-tural works are considered as one of the worst forms of child labour and engagement of children under age 18 in such works is prohibited. Given this, it is not possible to assert any legal basis for fixing minimum age as 16, for example, in hazelnut harvesting. The fact that the administration does not feel any need to find a legal basis derives from the complicated na-ture of legislation as we have stated at the beginning of this part and also from the absence of any crop-based risk assessment.

Given these, the following can be said about mini-mum age in employment in agriculture:

1) Under the ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimi-nation of the Worst Forms of Child Labour that Turkey is a State Party, the minimum age for em-ployment in seasonal migrant agricultural works is 18. According to Constitutional Article 90 the Convention constitutes a domestic law norm and its provisions are directly applicable without any need for additional legislation.

2) Further, the minimum age must be 18 in case works performed involve:

Extremely hot or cold working environments,

Working with substances hazardous to human health and may lead to occupational diseases; exposure to radioactive substances and harmful rays,

Extreme attention and standing continuously on foot for a long time,

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“Overtime work is the work performed by the worker upon his consent that exceeds normal working peri-ods specified by law. The obligation to perform over-time work arises only in cases where it is compulsory to do some work out of normal working period. It is an obligaton for the worker to perform this task giv-en that s/he is capable of doing it,his/her avoidance runs counter to the rules of honesty and s/he is remu-nerated accordingly for his overtime work.” (Art.398).

According to the Regulation on Principles and Pro-cedures Relating to the Employment of Child and Young Workers, child workers are entitled to 14 con-secutive hours of rest following a work day (12 hours for adolescents) and at least 1 hour of rest break dur-ing the day (at least 30 minutes after 4 hours of work in adults) (Art.6). Weekly rest period is at least 48 hours for children (24 hours for adults) (Art.8). Chil-dren and adolescents under age 18 cannot be em-ployed in any kind of night work (Art.5).

Weekly Rest: The Law No. 394 on Weekly Rest pro-vided for 1 day of rest in a week in settlements with population over 10,000 (Art.1). According to the Law No. 5837 on Paid Weekend and General Holidays for Workers the employer is obliged to pay half the dai-ly wage on vacation days without demanding any work in return. None of these rules are applicable to agricultural workers (Law on Weekly Rest Art.3). The consequent labour codes (i.e. Labour Code No. 3008) also maintained the principle of paid weekly rest.

The Law on Paid Weekend and General Holidays was repealed in 197133 and the Law on Weekly Rest in 2017.34 It is argued that there will be a lacuna related to weekends off in the absence of these legislative acts.35

The Code of Obligations No. 6098 taking effect in 2012 also provides for the right to weekly rest. In fact, this is provided for all workers employed with contract regardless of the type of enterprise. Hence, the repeal of the Law no. 394 will not lead to any negative con-

olescents must have 12 consecutive hours of rest for each 24 hours (Art.12).

As to leaves, paragraph 7/Article 7 of the Europe-an Social Charter envisages “at least three weeks of leave in a year to working persons under age 18.” The Directive 94/33/EC on the Protection of Young People at Work expects that this leave is in the peri-od when schools are closed (Art.4/2).

3.2.2National Arrangements on Working Time and Leaves

Daily Working Hours: As can be seen in Table 20 re-lated to working periods and leaves, daily working time can be maximum 8 hours for children over age 12 and under age 16 according to the Law on Public Health.

According to the Labour Code daily and weekly working hours of children under age 14 who will be engaged in artistic, cultural and advertising activi-ties cannot exceed 5 and 30 hours, respectively. For other age groups, it is daily 7 hours and weekly 35 hours in case of children over 14 but under 15; and daily 8 hours and weekly 40 hours in case of children between age 16 and 18.32 As for adult workers, their daily working hours is 7.5 and weekly working hours is 45 hours (Art.71).

In agricultural enterprises employing less than 50 workers, provisions of the Code of Obligations re-lated to service contract are applied (393 and oth-ers). Since the Code of Obligations does not provide for working period and suffices with stating “periods specified by legislation”, it is necessary here to ap-ply the provisions of the Law on Public Health and Labour Code and to conclude that the daily work-ing time is 8 hours. Though the Code of Obligations introduces some conditions for work exceeding this time period it still regards it as an ‘obligation deriving from service contract.’ Conditions for overtime work are as follows:

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4857 are entitled to daily wage while on leave on these days receive an extra daily wage in case they work.

The provisions of the Law No. 2429 on National and General Holidays and the Code of Obligations No. 6098 are to be applied in agricultural enterprises that are not subject to Labour Code. The Law No. 2429 reckoned these days as days off but did not provide for paid leave. The Code of Obligations states that “The employer may give special bonuses to work-ers because of certain days such as feasts, new year and birthdays. However, workers’ right of requesting premium arises in cases of existence of a contract or working term or unilateral commitment of the em-ployer about this issue.” (Art. 405). Thus, as agricul-tural enterprises are not subject to Labour Code and no specific regulation is enacted, there is no legal ob-ligation for employers to pay workers in national and general holidays. Though workers employed in agri-cultural enterprises have the right to ask for days off on national and general holidays on the basis of the Law No. 2429, the possibility of actually exercising this right is almost null because of both non-payment and nature and conditions of work they perform.

According to the Regulation on Principles and Pro-cedures Relating to the Employment of Child and Young Workers child workers cannot be employed on general holidays and national celebration days (Art.9). In agricultural production children are not paid on such off days.

Annual Leave: Under the Labour Code No. 4857, workers younger than 18 and older than 50 have the right of annual paid leave of at least 20 working days regardless of their seniority status. The period of annual leave for adults is either 14, 20 or 26 days depending on their service periods in their enterpris-es. In cases where the Labour Code is not applied, “The employer is obliged to allow for minimum two weeks of paid leave in the case of those who have been employed for at least one year and a minimum three weeks of paid leave in the case of those un-

sequence. According to the Code of Obligations “The employer is obliged to give one day holiday on Sun-days as a rule and if conditions do not allow this a full day vacation to the worker.” (Art.421). This provision of the Code of Obligations safeguards weekly rest for agricultural workers. Nevertheless, it is not practically possible to enjoy this right when agricultural workers are employed on the basis of such remuneration sys-tems as daily or lump-sum pay.

The Labour Code No. 4857 provides for weekend rest as follows (Art.46):

“The employees working in establishments cov-ered by this Act shall be allowed to take a rest for a minimum of twenty-four hours (weekly rest day) without interruption within a seven-day time period, provided they have worked on the days preceding the weekly rest day as indicated in Article 63. For the unworked rest day, the em-ployer shall pay the employee’s daily wage, with-out any work obligation in return.”

There is no difference between the Code of Obliga-tions and the Labour Code with respect to weekly rest. Both legislative texts adopt the principle that workers should be entitled to at least one day of fully paid leave in a week. Given that seasonal migrant agricultural workers are employed under the Code of Obligations, their weekly rest is also safeguarded. In practice, how-ever, the right to rest is not enjoyed since no payment is made for a day not worked even in cases where the worker has worked at the same enterprise for a period exceeding a week. Since any violation of this right re-quires appeal to a court it is clear that this right cannot be sought individually.

National Holidays and General Vacation Days: The Labour Code No. 4857 adopts the principle of paid leave on national holidays and general vacation days. In case of work on these days an additional payment amounting to daily wage has to be paid (Articles 44 and 47). Thus, agricultural workers with permanent work contracts and covered by the Labour Code No.

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“75.8 per cent of children work at least 12 hours a day. This percentage is little higher in girls (76.9 per cent). Assessments lead to the con-clusion that children work, on average, 11.7 hours a day. These working hours are mostly the re-sult of fathers’ and/or mothers’ preference out of the will of the child himself/herself since the aim is to earn as much as possible as a family. An overwhelming majority of children (99.3 per cent) work on every day of the week and 0.7 per cent work 5 days a week. Further 100 per cent of males and 98.7 per cent of females work full week.” 37

The annual working period of a family in agricultur-al works varies. It was found in a field survey cover-ing seasonal migrant agricultural workers that while annual working period in Adana-Mersin provinces is 106.42 days on average, it drops to 34.51 days in hazelnut harvesting in Ordu province. Still, these fig-

der age eighteen and over fifty.” (Art.422). Neither is there any possibility of applying this provision to seasonal agricultural works. The right to annual paid leave envisaged by the Labour Code “is not applica-ble to seasonal or campaign works that last shorter than one year due to their nature.” (Art.53).

3.2.3Evaluation of Legislative Arrangements on Work-ing Time and Leaves

Domestic law provisions related to working time and the right to paid leave are, generally, in compliance with international conventions. However, it is so as it is stated in legislation, on paper. As a matter of fact, surveys conducted suggest that daily working hours in seasonal agricultural works are no shorter than 9-10 hours on average and in some cases it may even exceed 10 hours.36

International and National ArrangementsWorking period

(days/hours) Period of rest Period of paid leave

Council Directive 94/33/EC on the protection of young people at work

Age -15 2/12

Age +15 8/40

European Social Charter At least three weeks

Law on Public Health

Ages 12 – 16 Maximum 8

Labour Code

Age - 14 5/30

Ages 14 – 15 7/35

Ages 16 – 18 8/40

Regulation on Procedures and Principles Relating to the Employment of Child and Young Workers

14 hours daily1 hour in every 4 hours

48 hours weeklyNo work on holidays

At least 3 weeks regardless of period of time worked

Table 20. Legislative Arrangements on Working Time and Leaves

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6. All workers and employers have the right to bargain collectively.”

Under Article 4 fair remuneration has to:

1) Provide workers and their families decent stand-ards of life,

2) Pay more in cases of overtime work,

3) Pay equally to both men and women for work of equal value,

4) Provide employment security (prohibition of em-ployment termination without notification),

ures may not be giving a fully correct idea about how long these people work in a year since a family may have worked for another crop before hazelnut har-vesting and move to another in some other province after hazelnut. In short, seasonal migrant agricultural workers and their children work at any time and any place where they find job without any entitlement to annual leave, weekly rest or holiday.

The period of working is one of the reasons why seasonal migrant agricultural works constitute one of the worst forms of child labour. Besides the ab-sence of any opportunity for paid rest, it is also out of question that any worker could have worked at an enterprise long enough to enjoy such rights. About 95 per cent of agricultural workers are employed in enterprises employing less than 50 workers and thus they are subject to the Code of Obligations which has negative implications for both working and non-working children of migrant agricultural work-ers. Adults covered by the Code of Obligations are not entitled to weekly or annual rest, the right not to work on national holidays and general vacations and neither can they claim any extra pay or bonus for working on these days too.

3.3Legislative Arrangements on Remuneration

3.3.1International Arrangements on Remuneration

Part I of the European Social Charter includes the following provisions:

“4. All workers have the right to a fair remunera-tion sufficient for a decent standard of living for themselves and their families.

5. All workers and employers have the right to freedom of association in national or internation-al organizations for the protection of their eco-nomic and social interests.

European Social CharterArticle 4 – The right to a fair remuner-ationWith a view to ensuring the effective exercise of

the right to a fair remuneration, the Parties undertake:

1. To recognize the right of workers to remu-neration such as will give them and their fam-ilies a decent standard of living;

2. To recognize the right of workers to an in-creased rate of remuneration for overtime work, subject to exceptions in particular cas-es;

3. To recognize the right of men and women workers to equal pay for work of equal value;

4. To recognize the right of all workers to a rea-sonable period of notice for termination of employment;

5. To permit deductions from wages only under conditions and to the extent prescribed by national laws or regulations or fixed by col-lective agreements or arbitration awards.

The exercise of these rights shall be achieved by freely concluded collective agreements, by statutory wage fixing machinery, or by other means appro¬priate to national conditions.

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prises not covered by this legislation (Art. 113), wage has to be paid in a month the latest, and there can be no other wage cut except for reasons specified by the collective agreement or work contract which cannot exceed two daily wages in a month. Further, these cuts from wages have to be deposited to a bank account specified by the Ministry of Labour and Social Security to be used in workers’ training and social services.39

Further, the Regulation on Employment Conditions in Agriculture and Forestry Works is drafted on the basis of Article 111 of the Labour Code No. 4857 and it provides for some issues including working condi-tions, service contract, wages and work organization.

According to the Code of Obligations, the employer is obliged to pay his employee the amount specified in the contract or in collective agreement or, in case there is no relevant provision, an equivalent amount which cannot be less than the minimum wage (Art.401). In cases of overtime work, the employer is also obliged to pay 50 per cent of the regular wage (Art.402)

3.3.3Evaluation of Legislative Arrangements on Remu-neration

There is no uniform contract in agricultural produc-tion. Families engaged in seasonal migrant agri-cultural works are employed on the basis of oral or written contracts that may entail different wage rates for different crops. The most commonly known and used form is daily wage although one can frequently observe different modes such as lump-sum (kabala) payment and sharecropping on the basis of varying percentages.

In daily wage system wage is the payment made to a worker on his daily work. In other systems, however, work is undertaken by the family and since children work as a part of family their specific daily remuner-ation cannot be determined.

5) Guarantee no deduction from wages (other than in cases prescribed by law as fixed by collective agreement).

The UN Covenant on Economic, Social and Cultural Rights also mentions the right to fair remuneration of workers (Art.7). This Covenant envisages the fol-lowing for each employee together with minimum income:

a) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

b) A decent living for themselves and their families in accordance with the provisions of the present Covenant.

States Parties to the ILO Convention on Fixing Mini-mum Wage in Agriculture commit to introduce pro-cedures that allow fixing of minimum wage rates in agricultural works and to maintain such procedures.

3.3.2National Arrangements on Remuneration

The Labour Code No. 4857 fixes the minimum wage to be paid (Art.39). The important arrangement in-troduced by this law with respect to wage is that le-gally fixed minimum wage is applicable to all working people whether covered by the law or not.

Under the Minimum Wage Regulation a single mini-mum wage is set for all sectors and workers whether covered by the Labour Code or not since 1 August 1989. According to the same regulation, it is possible to set different minimum wages for child and adult workers, but this was removed on 1 January 2014 and a single minimum wage regardless of age is in effect since then.

Since provisions of articles 34 to 38 of the Labour Code relating to wage are to be applicable to enter-

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that small producers face become a source of higher profits accruing to big farmers, traders and their in-termediaries. There is no national legislation arrang-ing for these relations and consequently protecting the value of labour. The “value of labour” protected in principle in the 1961 Constitution is missing in the 1982 Constitution. Then, there is need to refer to in-ternational conventions to defend the value of labour.

According to the European Social Charter and the UN Covenant on Economic, Social and Cultural Rights, an income that will provide a decent life for the worker and his family must be guaranteed while setting the minimum wage. Unless this is ensured, non-employ-ment of children of seasonal migrant workers does not mean that their rights are protected. All policies that do not duly consider family income and try to solve the problem by prohibitions can only promise a childhood apart from parental care and interest, leaving aside the satisfaction of basic needs includ-ing nutrition and education in the first place.

In cases where service contract is acted, wages and working conditions are to be determined by service contracts acted by workers, employers and middle-men; wage rate determined this way has to be kept above minimum wage and it has to be paid directly to the worker. But these provisions are rarely imple-mented since no inspection is possible. When chil-dren are concerned, implementation of these provi-sions have no guarantee at all. According to a survey, 90.1 per cent of child workers give what they earn to their parents.45

In practice, daily or other wage rates applicable in seasonal hoeing, weeding and harvesting works are determined by seasonal commissions established at province-district level, chambers of agriculture, union of exporters and in some regions by informal commissions formed by local headmen. The method used in determining daily wage is dividing minimum wage by 30. Still, there is neither clarity in this; it is observed that calculation is made on net minimum wage in some cases and gross wage in others.

It must also be noted that employment relation is not always established between the plot/orchard owner and the worker on contractual basis. In hoe-ing and weeding works in cotton farming, for ex-ample, there may be daily wage or lump-sum pay-ment (kabala) on per decare basis. In many crops, particularly in hazelnut and cotton, there may be various types of remuneration like sharecropping, tenancy or claiming 30 per cent of cotton or 50-60 per cent of crusted hazelnut in return for labour only. In general, these are types of remuneration preferred by farmers who are unable to produce on their own plots or want to avoid risks in calculating production costs. Remuneration on the basis of the amount of produce harvested is also preferred for purposes of higher yield. Share-cropping is defined as follows: “It is a type of enterprising that envis-ages the sharing in-kind of produce after harvest-ing and in predetermined proportions”40 In tenancy, on the other hand, “the tenant makes a lump-sum payment irrespective of the amount of produce to the owner of the land who does not contribute to production costs.”41 In these types of production, children work as unpaid family workers; without any income of their own, their working conditions may get heavier as means of control get weaker. Similar-ly, in lump-sum arrangements too, families tend to increase their seasonal income as much as possible by including children at very young ages in the pro-cess of production.

Though rare, mixed structures mentioned by Borat-av42 are also observed in hazelnut culture. Particular-ly in small enterprises and on mountainous areas plot owners as well as children and young people work in harvesting as local labour. Therefore there are also some seasonal workers who are not landless peas-ants but still not able to sustain their families only with the income of their own small plots.

Along with employer-employee relations, this com-plicated situation also prevents clarification of the issue of “sharing of agricultural profit.”43 Difficulties

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In Afşin district of Kahramanmaraş, for example, the Afşin Chamber of Agriculture fixed daily wage rate in agricultural works as 50 TL including the share of çavuş in April 2018.46 In this case the total wage of a person working 30 days a month is 1,500 TL. Given that minimum wage for a single worker is net 1,613.12 TL in 2018 and its total cost to the employer is 2,384 TL47 , this rate appears to be even lower than the minimum wage. Moreover, there is no ex-tra payment if there is daily overtime work or work at weekends. In seasonal agricultural works, there are different types of remuneration other than dai-ly wage. For example, there is no standard related to per unit remuneration in cotton, onion or carrot picking or for lump-sum paid hoeing and weeding in sugar beet and vegetables, it is up to negotia-tions between farmers and middlemen or workers.

TÜİK data too confirm that there is no clarity as to the calculation of daily wage. For the year 2017 the average daily wage of seasonal agricultural workers was 66 TL, and the monthly earning of permanent agricultural workers was 1,857.00TL. Given these figures, a seasonal agricultural worker has to work 28 days a month to earn as much as permanent agricultural workers in case there is no deduction from his daily wage.48

According to a survey which compared the cases of permanent (typical) and a-typical workers in pri-vate sector on the basis of gender and sectors, 63.1 per cent of males employed on daily wage basis earn less than half of minimum wage, 31.5 per cent earn between half the minimum wage and mini-mum wage, and 5.4 per cent between minimum wage and two times the minimum wage. There was no worker earning over two times the minimum wage. For females with daily wages, the same sur-vey finds out that 91.9 per cent earn less than half of minimum wage and 8.1 per cent earn between half the minimum wage and minimum wage. There was no female worker earning over these two cat-egories. Of those who are self-employed in agri-

KAHRAMANMARAŞ (AA) – Daily wage of agricultural workers in Afşin was fixed as 50 TL including the share of çavuş.

The appointed president of Afşin Chamber of Agriculture, Mehmet Sarıbıyıkoğlu made a sta-tement today in his Office that as a result of the-ir evaluation, the daily wage of an agricultural worker was determined as 50 TL for the year 2018 including the share of çavuş.

According to this arrangement the worker will get 48 TL while the remaining 2 TL will go to çavuş. Sarıbıyıkoğlu said:

“In case seasonal worker works longer than 8 hours, 6.25 TL is to be paid for each extra wor-king hour; a çavuş will supervise the worker and he will also be paid by the employer. I want to stress that it is forbidden to employ children under age 16. For boarded workers, the cost of arrival will be covered by the employer and the worker will cover his costs of return. Workers who commute daily will have their agreements with their employers; the worker has to work for at least 8 hours a day. No worker should be transported on truck bed. Wage rates are fixed as follows: Ploughing on irrigated land 25 TL per decare and 21 TL on dry land; cultivating 13 TL, vine stocking 11 TL, harrowing 11 TL, agricultural medication 7 TL per decare, orc-hard medication in a store of 1 ton is 70 TL and medication of 400 litres is 40 TL.”

Source: www.milliyet.com.tr/afsin-de-mevsimlik-tarim-isci-yevmiye-leri--yerelhaber-2737977/ (Accessed on 5 May 2018)

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ing to the Code of Obligations No. 6098 “If the worker works in household organization together with the employer, then the employer is obliged to provide adequate food and a proper shelter.” (Art. 418). Some seasonal migrant agricultural workers stay near crop fields or orchards they are working in. So their employer is supposed to provide these services without asking the cost of or making de-duction from wages. However, in case the employ-er does not fulfil this obligation the worker has to either terminate his service contract or apply to a court to claim his rights both of which are at odds with this form of employment.

Furthermore, even the full payment of minimum wage does not mean equal pay in comparison to industrial employment since agricultural workers work without security. They are not entitled to ac-cident and retirement benefits, job security and severance pay54 The conditions such as the employ-ment of minimum 50 workers (Art. 4) and having worked for the same employer on contract of indef-inite period for at least 6 months (Art. 18) are not satisfied in seasonal agriculture.

However, there are some provisions of the Labour Code that can also be applied in agricultural works:

Art. 32 – Wage and its remuneration

Art. 35 – Protected portion of the wage

Art. 37 – Wage account slip

Art. 38 – Deduction of fine from wage

Formally, the Labour Code is applicable to agricul-tural workers as well in relation to wage issues, but this does not mean much when it comes to prac-tice. Because no contract is made and practices in this sector cannot be inspected due to institutional insufficiencies.55 For example, although deductions from wages are allowed only if settled by contracts and there is no formal arrangement (work contract of collective agreement) providing for wage deduc-tions, there may be such deductions from wages of

culture, 55.1 per cent of males and 91.4 per cent of females earn less than minimum wage.49

TÜİK data too show that there are wage gaps be-tween male and female workers. In 2017 the aver-age daily pay of female agricultural workers was 60 TL and that of males was 73 TL, and these rate var-ied by provinces. The highest daily wage for women was found as 79 TL in Ordu and the highest for men as 104 TL in Ardahan. The lowest wages for wom-en and men are in Hatay as 36 TL for women and 46 TL for men.50 It must not be forgotten, however, that these figures by TÜİK do not take into account differences with respect to crops and remuneration types, just giving averages. As such it is not possi-ble to reach clear conclusions regarding a specific crop and region.51 Considering that minimum wage was 1,404 TL in 2017, these figures clearly show that workers are employed at rates much lower than minimum wage and agricultural workers are far away from fair remuneration which is supposed to be constitutionally guaranteed.

There is no possibility of weekly rest for seasonal agricultural workers in case daily wage is fixed this way. Yet, the arrangement introduced in Turkey in 1830 after Ibrahim Pasha of Egypt brought workers to Çukurova from Sudan, known as the first relat-ed to seasonal agricultural works, had established 7-day’s wage for 5.5 days of weekly work.52 Since workers in factories are paid for 30 days while working on 26 days in a month, it is one of the gaps of the remuneration system that there is no weekly rest for seasonal agricultural workers.

Even daily wages fixed by commissions established in provinces under governorates are not fully paid. What is actually paid generally is 10 per cent low-er than what is fixed and, further, middlemen have their share of 10 per cent in this already reduced amount.53 There are also some cases in which farm-ers make deductions for what they provided as food, etc. Shortly, workers have to work full month for what is below the minimum wage. Yet, accord-

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agricultural workers by employers or agricultural middlemen. Neither is there any pay for days not worked for various reasons (i.e. adverse weather conditions).56

The most important issue in the sector of agricul-ture in general and in seasonal migrant works is poverty which is both the cause and effect. Wage policy is therefore an issue which requires closer look.

According to a study made in the period 2003-2006, 20 per cent of household heads are em-ployed in agriculture and livestock breeding and 51 per cent of these people are in the lowest 20 per cent income quintile. 12 per cent of households in this sector are in the highest 20 per cent income quintile.57 In another study58 it is reported that 60 per cent of seasonal agricultural workers earn be-low national poverty line. Indeed, there is another study58 reporting that 15 per cent of local and 54 per cent of migrant agricultural workers earn less than 500 TL a month.

3.4Legislative Arrangements on Social Security

3.4.1International Arrangements on Social Security

Article 12 in the European Social Charter provides four the right to social security. According to this ar-ticle “All workers and their dependents have the right to social security.” In this context, States are obliged to establish a social security system first, give effect to the ILO Convention No. 102 on Social Security (Minimum Standards), to further develop this sys-tem and cooperate with other States Parties in this field by acting appropriate bilateral agreements. The Charter recognizes the right to medical and social as-sistance of those who cannot benefit from the social security system (Art.13).

European Social Charter

Article 12 – The right to social security

With a view to ensuring the effective exercise of the right to social security, the Parties un-dertake:

1. to establish or maintain a system of social security;

2. to maintain the social security system at a satisfactory level at least equal to that nec-essary for the ratification of the European Code of Social Security;

3. to endeavour to raise progressively the sys-tem of social security to a higher level;

4. to take steps, by the conclu-sion of appro-priate bilat-eral and multilateral agree-ments or by other means, and subject to the conditions laid down in such agreements, in order to ensure:

a. equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security leg-islation, whatever move¬ments the persons protected may undertake between the terri-tories of the Parties;

b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employ-ment periods completed under the legisla-tion of each of the Parties.

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This right is also enshrined in the UN Covenant on Economic, Social and Cultural Rights in a manner to cover the right to social security as well (Art.9). The covenant also envisages special protection in cases of maternity:

“Special protection should be accorded to mothers during a reasonable period before and after child-birth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.” (Art. 10)

Turkey is a State Party to Convention No. 102 on So-cial Security (Minimum Standards). According to this convention which was ratified in 1971 social security system must cover sickness, pregnancy, maternity, unemployment, old-age, invalidity, family, work acci-dent and death benefits and periodic payments (Ta-ble 21). It is required that foreigners must be entitled to same rights as Turkish citizens (Art.68). The Con-vention states that social security is a right that must be accorded not only to workers but all, particularly those with children.

Benefits Coverage

Medical care and sickness benefits(Art. 7-18)

a. In case of a morbid condition:

- General practitioner care, including domiciliary visiting;

- Specialist care at hospitals for in-patients and out-patients, and such specialist care as may be available outside hospitals;

- The essential pharmaceutical supplies as prescribed by medical or other qualified practitioners.

b. In case of pregnancy and confinement:

- pre-natal, confinement and post-natal care and

- hospitalization where necessary.

c. Sickness benefits

Unemployment benefits It denotes benefits that a person protected who is capable of and available for work is unable obtain suitable employment is entitled to. It amounts to, for a period of 12 months, payment that corresponds to total wage of 13 to 26 weeks.

Old-age benefitsIt denotes benefits that a person is entitled to after reaching a specific age as set by legislation and has contributed to the fund for a specific period of time

Benefits regarding work accidents and occupational diseases

a. The medical care shall comprise:

- General practitioner and specialist in-patient care and out-patient care, including domiciliary visiting;

- Dental care;

- Nursing care at home or in hospital or other medical institutions;

- Dental, pharmaceutical and other medical or surgical supplies, including prosthetic appliances, kept in repair;

- Care furnished by members of such other professions as may at any time be legally recognized as allied to the medical profession, under the supervision of a medical or dental practitioner.

b. The medical care in work accidents shall include at least:

- General practitioner care, including domiciliary visiting;

- Specialist care at hospitals for in-patients and out-patients, and such specialist care as may be available outside hospitals;

- Essential pharmaceutical supplies as prescribed by a medical or other qualified practitioner;

- Hospitalization where necessary.

Family benefit

Family benefit includes the following to ensure the maintenance of dependents including children in particular:

- Periodic payments and/or

- Provision to or in respect of children, of food, clothing, housing, holidays or domestic help.

Table 21. Scope of Social Security according to the Convention No.102 on Social Security (Minimum Standards)

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payment of old-age insurance, article 33 on contribu-tions and article 35 on the dependents of the insured person in the Law No. 2925 dated 17/10/1983 on So-cial Security of Agricultural Workers” (Art.106/6) and consequently it became no longer easy for agricul-tural workers to be insured.60

Presently, thearticles of the Law No. 2925 which are still in effect are limited to articles 7-12 providing for work accidents and occupational diseases, articles 18-23 providing for invalidity and old-age benefits and article 25 and on providing for death benefits to survivors. The Social Security and General Health In-surance Law No. 5510 will replace the provisions that were repealed.

The Law No. 2926 on Social Security of Self-Em-ployed in Agriculture was prepared to provide social security benefits such as invalidity, old-age and death to independently self-employed people working in agriculture (Art.1). According to this law, males have to be over age 22 and females have to be household head besides being over age 22 to be entitled to social security benefits. The Law No. 2926 too was repealed by the Law No. 5510 dated 31 May 2006.

According to the Law No. 5510 on Social Security and General Health Insurance, those who are tem-porarily employed in agriculture and forestry will either opt for voluntary insurance or request social security coverage under “additional article 5” intro-duced to the Law No. 5510 by the Law No. 6111.61 It is provided that those over age 18 who are tem-porarily employed in agriculture or forestry on the basis of service contract will be considered as with-in social security coverage starting from the time of their application. For these persons (4.1.a.), only work accident and occupational disease insurances are applicable with respect to short-term insurance items and invalidity, old-age, death and general health insurance provisions are applicable with re-spect to long-term benefits. For persons subject to the provisions of this article to be entitled to work

In sum, all are entitled to social security as specified in Table 21. While some of these depend on the form and duration of employment (i.e. old age, invalidity), others have no such precondition (i.e. family, mater-nity, health benefits).

3.4.2National Arrangements on Social Security

The ways that agricultural workers benefit from the social security system on the basis of their status vary:

Those who are employed on the basis of perma-nent service contract under one or more employ-ers.

Those who are employed on the basis of tempo-rary contracts under the Law No. 2925 on social Security of Agricultural Workers.

Those who work independently under the Law no. 2926 on Self-Employed in Agriculture.

The Law No. 2925 on Social Security of Agricultur-al Workers aims to “… ensure the social security of persons employed temporarily in agricultural works on the basis of service contract with the provisions of the present law” (Art.1). It is a social security arrange-ment relating directly to seasonal agricultural work-ers. The law envisages the social security coverage of workers in agriculture upon their request (Art.2) but not those under age 18 (Art.4). The law introduc-es entitlement to retirement at age 50 for women and at 55 for men given that their social security con-tributions are made for 180 days a year, not to be shorter than 15 days a month, and that 3,600 work days are fully completed. The Unemployment Insur-ance Law adopted in 199959, however, lifter these ages up to 58 for women and 60 for men. Then, the Law No. 5510 on Social Security and General Health Insurance repealed “general provisions included in articles 1 to 5, provisions on sickness benefits includ-ed in articles 13 to 17, article 24 envisaging lump-sum

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or by voluntary schemes is not entitled to unemploy-ment benefits since contributions for unemployment insurance is not made.

The Code of Obligations No. 6098 imposes upon the employer the obligation “to protect worker’s per-sonality and to behave respectfully during service re-lationship and to ensure an organization in the work-site based on honesty principles, to take necessary measures for workers not to come to psychological and sexual abuse and those who have suffered such abuses not to suffer any further damage.” (Art. 417). The employer has to take all necessary measures to ensure work safety and health at his enterprise and to maintain all necessary equipment and instruments while workers are obliged to comply with all meas-ures adopted for safety and health. The employer has to cover damages in case of any death, injury or violation of personal rights resulting from his failure in fulfilling his obligations. Further,

“In case the worker is incapable to work as a result of such events as illness or work accident without his fault, the employer has to provide for his care and treatment for a period of two weeks in case the worker has been employed for one year and not cov-ered by social security benefits” (Art. 418).

3.4.3Evaluation of Legislative Arrangements Related to Social Security

The form of employment of seasonal migrant agri-cultural workers who are the poorest and most de-prived segment of the country or of their hometown perpetuates poverty in a vicious circle. One of the relevant factors is their exclusion from social protec-tion systems. When asked in a survey whether there are family elders who were also seasonal agricultural workers, 64 per cent of local and 66 per cent of mi-grant workers said “yes.”63 This shows that seasonal agricultural work reduces other employment op-tions. The same survey found that local seasonal ag-

accident and occupational disease benefits, they have to be registered at least 10 days before the accident concerned and to have their insurance sta-tus still in effect; and to be entitled to temporary or permanent incapacity benefits due to work acci-dent or occupational disease, to old-age and death benefits they have to leave no debt related to social security contributions. In case of any work accident or occupational disease, the situation should be reported immediately to the security department by themselves or by their employers, and within 3 work days to the relevant institution. Under article 50 of the sale law headed “voluntary insurance and its conditions”, a person has to be over age 18 to be qualified for voluntary insurance. In case insured, an agricultural worker has to make his contribution amounting to 34.5 per cent of thirty times his daily earning. Of this total (34.5 per cent) 20 per cent is for incapacity, old-age and death, 12.5 per cent is for general health insurance and 2 per cent for work accident and occupational disease.62

Given this, agricultural workers including those who work seasonally are entitled to “voluntary insurance” upon their choice. However, this form of social secu-rity does not emanate from employer-employee re-lations since it binds not the employer but employee himself who is supposed to make his contributions. The voluntary nature of social security in this branch renders the situation even more precarious.

The Unemployment Insurance Law No. 4447 envis-ages support for a period of time through unemploy-ment benefits to workers who lost their jobs in return for their earlier contributions. Agricultural workers who are insured by employers on the basis of 4/a status under the Law No. 5510 on Social Security and General Health Insurance are entitled to unemploy-ment benefits since their contributions have been made. On the other hand, seasonal agricultural work-ers employed temporarily in agriculture and forestry that is covered by addendum 5 in the Law No. 5510

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gion mostly for 6 months (40 per cent). The ma-jority of these families do seasonal agricultural works for subsistence and they have no other source of income.”65

Seasonal and temporary nature of agricultural works prevents the establishment of employment within the scope of social security as an employer obliga-tion. While the share of insured workers in general increases by years, there is a decline on the part of insured among those covered by compulsory insur-ance, working in agriculture on contract and self-em-ployed. The share of agricultural workers is also small in the total number of insured relative to other sec-tors. Yet, in 2016, while the total employment figure was 27,651,000, population working in agriculture was given as 5,577,000.66 Hence while about 1/5 of working people are in agriculture, only 3 per cent of insured are in this sector (Table 22). These figures clearly indicate that existing legislative arrange-ments are insufficient in ensuring social security in agriculture.

Table 22. Share of Persons with Social Security Cov-erage in Agriculture in Total Number of Insured Peo-ple (2016)67

Social Security CoverageNumber of persons

Percent age

I- Insured 21,131,838 100.0

Agriculture (4-1/a)- Working on service contract

36,125 0.1

Agriculture (4-1/b)- Self-employed 717,876 3.3

A study explains the status of agricultural workers in the social security system as follows:

“Despite heavy nature of their work, seasonal agri-cultural workers are deprived of any support in case of any work accident, occupational illness or death since they are not covered by any social security scheme.68 To have health insurance, relevant contri-

ricultural workers mostly have other jobs since they are not away from their original settlements, hence they are covered by some social security scheme, and that those who say they work only in seasonal agriculture have their crop fields or orchards as fam-ily holdings. The survey makes the following obser-vation on seasonal migrant agricultural works on the basis of its sample:

“Since workers engaged in chickpea culture can-not gain additional skills as seasonal migrant workers, the number of those in other works re-mains low relative to local seasonal agricultural workers. Indeed, those who are engaged in other works as well state that they earn some money after returning to their original settlements by working in constructions, masonry, electrical works, etc. if they can find such jobs.” 64

Another comparative study conducted in Çukuro-va in 2002 on socio-demographic characteristics of local and migrant agricultural workers exposes why seasonal migrant works constitute one of the worst forms of child labour and how it leads to a state of poverty transferred from one generation to another. As stated in this survey:

“It is observed that education opportunities of children of local seasonal agricultural worker families are better than children of seasonal mi-grant agricultural workers. The main reason is the fact that children of seasonal migrant work-ers have to stop their school attendance if their families’ seasonal work elsewhere coincides with school year. Some of these children do not return to their schools after the working season. A large majority of seasonal workers who permanently reside in the region and other seasonally com-ing in are originally from South-eastern Anatolia provinces including Adıyaman, Mardin and Di-yarbakır. A large part of local seasonal workers (47.38 per cent settled in the region 10-15 years ago. As to migrant families, they stay in the re-

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Since employment in agriculture is on the basis of contracts with indefinite duration, agricultural work-ers remain out of the coverage of the legislation that envisages social security coverage of workers by their employers on 4/a status. Consequently, there is no possibility of benefiting from unemployment in-surance.

In 2015 a parliamentary commission was established in the TBMM to “Identify the Problems of Seasonal Migrant Agricultural Workers and Measures to be Adopted.” According to the survey on the Identifica-tion of the Needs of Seasonal Agricultural Workers and Their Families (2011) to which this Commission referred, average years spent as seasonal agricultural worker is 12.6 years and half of families covered by the survey report that they have been in this status for 10 years or longer. The average period of work in a year 4.8 months, but this period doubled with the spread of greenhouse farming.73

It is reported that in 2014 the total labour force in Turkey is 29,181,000 of which 26,130,000 are em-ployed and agricultural employment in this total is 5,404,000. The number of people employed tempo-rarily in agriculture and forestry with social security under the Law No.5510 is 243,195 and the number of people covered by voluntary insurance is 129,135.74 These figures include employers as well. It is not pos-sible to reach a definitive conclusion since there is no information specific to agricultural sector. Neverthe-less, limited quantitative information that could be collected is sufficient to conclude that a significant part of those employed in agriculture is not covered by any social security scheme.

As far as children are concerned there is neither social security nor unemployment benefits. Yet, regardless of the employment status of their parents, children must be provided social protection including period-ic payment, and support in terms of food, clothing, housing and leisure-recreation.

butions have to be made either by their employ-ers or themselves; yet, due to their low wages they face difficulties in meeting their most basic needs let aside paying security contributions. Bringing of social security institutions together under the same roof led to no significant change in the situation of agricultural workers. They have no possibility of making security contributions given that a worker employed for 3-4 months a year has to pay his total wage of 44 days as secu-rity contribution.69”70

Table 23 below gives in comparative terms benefits provided by social security systems that those work-ing in agriculture are entitled to. As can be seen in the table existing arrangements are scattered and none of them provide the full range of social security benefits.

Presently agriculture accounts for almost one-fifth of total employment and it is stated that about a half are self-employed.71 Hence the table is relevant to a rather large mass of working population.

In comparative terms, social security coverage of self-employed in agriculture related arrangements vary among European countries (Table 24). The most comprehensive social security model concerning self-employed can be found in Finland. Since agricul-ture is considered as a branch where exposure to and risk of occupational diseases and work accidents is high, the provision of full protection is important for both farmers and workers.

It is known that a large majority of seasonal migrant agricultural workers in Turkey remain out of any so-cial security scheme for having indefinite duration of employment and voluntary nature of social security coverage. There are significant differences between farmers and workers with respect to factors that in-fluence their motivation for social security coverage. Income security which is the most important func-tion of social security is absent in agriculture for both employers and employees.

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LegislationWorkAccident

Illness - Maternity (Medical Aid)

Illness - Maternity (Cash Assistance)

Invalidity- Old age - Death

Family allowances

Long term care

Unem-ploy-ment

Law No. 2925 on Social Security of Agricultural Workers (workers employed on the basis of indefinite contract period)

Partly yes Yes Yes Partly yes No Yes No

Law No. 5510 on Social Security and General Health Insurance (workers with employment contract)

Yes Yes Yes Yes Partly yes Partly yes No

Law No. 4447 on Unemployment Insurance --- --- --- --- --- Yes

Table 23. Social Security Status of Self-Employed Persons and Workers in Agriculture (work for indefinite period and voluntary insurance)

CountriesWork Accident

Illness – Maternity (Medical Aid)

Illness – Maternity (Cash Assistance)

Invalidity- Old age- Death

Family allow-ances

Long term care

Unem-ploy-ment

Belgium No Yes Yes Yes Yes Yes No

Germany Yes Yes No Yes Yes Yes No

Greece Yes Yes No Yes Partly yes Partly yes No

Spain Yes Yes No Yes Yes Yes No

Finland Yes Yes Yes Yes Yes Yes Yes

Table 24. Summary of Social Security Status of Self-Employed in Agriculture in Some EU Countries

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ers’ organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations of workers and employers (Art.5)”.

According to ILO Convention No. 87 on Freedom of Association and Protection of the Right to Or-ganize,

“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization con-cerned, to join organizations of their own choos-ing without previous authorization (Art.2) The public authorities shall refrain from any interfer-ence which would restrict this right or impede the lawful exercise thereof (Art.3). Workers’ and employers’ organizations shall have the right to establish and join federations and confeder-ations and any such organization, federation or confederation shall have the right to affiliate with international organizations of workers and em-ployers (Art.5)”.

According to ILO Convention No. 98 on the Right to Organize and Collective Bargaining,

“Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. Such protection shall apply more particularly in respect of acts calculated to (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a work-er by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, with-in working hours.” (Art.1)

Under the ILO Convention No. 11 Concerning the Rights of Association and Combination of Agri-cultural Workers:

“Each Member of the International Labour Organ-ization which ratifies this Convention undertakes

3.5Legislative Arrangements on the Right to Organize

3.5.1International Arrangements on the Right to Organize

The UN Covenant on Economic, Social and Cultur-al Rights has its specific provisions on the right to organize. The Covenant requires States Parties to ensure:

“The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests.” (Art.8)”.

The European Social Charter entitles trade union rights to foreigners working in a country. According-ly, States Parties are:

“to secure for such workers lawfully within their territories, insofar as such matters are regulated by law or regulations or are subject to the control of administrative authorities, treatment not less favourable than that of their own nationals in re-spect of the following matters: a) remuneration and other employment and working conditions; b) membership of trade unions and enjoyment of the benefits of collective bargaining” (Article 19).

According to ILO Convention No. 87 on Freedom of Association and Protection of the Right to Or-ganize,

“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization con-cerned, to join organizations of their own choosing without previous authorization (Art.2) The pub-lic authorities shall refrain from any interference which would restrict this right or impede the law-ful exercise thereof (Art.3). Workers’ and employ-

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in finding job which has become harder with the recent addition of foreign migrants to agricultural labour market, low levels of education, and need to move fast to different locations for different crops are the factors impeding the organization of work-ers. Other obstacles include weak demand by agri-cultural supply firms for decent work and absence of any demand for the implementation of national and international legislation in supply chains.

3.5.3Evaluation of Legislative Arrangements on the Right to Organize

The Law No. 6356 on Trade Unions and Collective Bargaining envisages the establishment of unions on trade-branch basis. It is not possible to establish unions on workplace basis. Given this, agricultural workers (including seasonal workers) have the right to join only a union already existing in this branch. And for this union to exercise the right to collective bargaining, it must have at least 1 per cent of workers in the trade-branch as its members. Since formal em-ployment is not common and workers are dispersed, neither determining the number of total workers nor organising workers seem possible.76

There is need to introduce “workplace” level unioni-zation for the promotion of the right to organize not only for agricultural workers but all employees in general. This will enable workers as union members to engage in collective agreement at workplace level and the means to improve workplace conditions.

Meanwhile it is positive that the Law No. 6356 on Trade Unions and Collective Bargaining brings no limitation to children’s membership to trade unions. But there is no mention of children’s union member-ship since unionization is very weak in this sector an-yway. So it is not possible to speak about any factual positive impact of this legislation on child labour.

to secure to all those engaged in agriculture the same rights of association and combination as to industrial workers, and to repeal any statutory or other provisions restricting such rights in the case of those engaged in agriculture.” (Art. 1).

3.5.2National Arrangements on the Right to Organize

Under the Trade Union and Collective Bargaining Law No. 6356 which took effect in 2012 any person over age 15 and considered as worker under the rel-evant legislation, can be a union member. The con-dition of written permission by legal representative was lifted in 2012. Since this law was designed so as to cover those workers remaining out of the scope of the Labour Code (workers in enterprises employing less than 50 workers), persons in worker status un-der the Code of Obligations too can be union mem-bers and establish unions (Art.6). Hence, agricultural workers and seasonal migrant agricultural workers who are out of the scope of the Labour Code can also unionise and establish unions. In case a union is established in agriculture, this union must have members corresponding to at least 1 per cent of all workers in the sector to have the right to collective agreement (Art.41).75 Due to the characteristics of this sector, however, there are significant obstacles against organization even if legislative framework is fit for.

Seasonal migrant agricultural workers find jobs mostly through agricultural middlemen. The calen-dar and the kind of works that the former will en-gage will do depend on middlemen’s connections or connections they seek. Their working period may be as short as one day in some cases or may take days while climate changes may also prevent them from finding jobs. Different types of remuneration, for example share-cropping or lump-sum payment may place workers in contractor or sub-contractor positions before land/orchard owners. Competition

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Endnotes

1 6.043.09.2008 - 26986

2 Selek Öz, C., Bulut, E. (2013). Mevsimlik Tarım İşçilerinin Türk Hukuk Sistemi İçerisindeki Yeri, ÇSGB Çalışma Dünyası Dergisi, 1(1), sf. 96

3 Y9HD, 7.9.2015 26324/14105; Y22HD, 16.12.2014 33548/35870 Zikreden: Yücel, R., Ömercioğlu, A. (2016). İş ve Borçalar Hukuku Temelinde Tarım Çalışanları ile İnsan Kaynakları Yönetimine İlişkin Kavramsal Bir Çalışma. Ankara Barosu Dergisi, 1, sf. 255

4 Selek Öz, C., Bulut, E. (2013). Mevsimlik Tarım İşçilerinin Türk Hukuk Sistemi İçerisindeki Yeri, ÇSGB Çalışma Dünyası Dergisi, 1(1), sf. 100

5 Yücel, R., Ömercioğlu, A. (2016). İş ve Borçalar Hukuku Temelinde Tarım Çalışanları ile İnsan Kaynakları Yönetimine İlişkin Kav-ramsal Bir Çalışma. Ankara Barosu Dergisi, 1, sf. 249

6 Tarımda İş Aracılığı Yönetmeliği (RG 27.05.2010 - 27593) md. 12

7 Tarım ve Ormandan Sayılan İşlerde Çalışanların Çalışma Koşullarına İlişkin Yönetmelik (RG 06.04.2004 – 25425). Bu yönetmelik 09/10/2008 tarih ve 27019 S.R.G.de yayımlanan “Tarım Ve Ormandan Sayılan İşlerde Çalışanların Çalışma Koşullarına İlişkin Yönet-meliğin Yürürlükten Kaldırılmasına Dair Yönetmelik’in 1. maddesi ile yürürlükten kaldırılmıştır.

8 Ulukan, U., Ciğerci Ulukan, N. (2011). Fındık Üretiminde Çalışma İlişkileri ve Mevsimlik İşçiler: Perşembe Örneği. 2000’li Yıllarda Türkiye’de İktisat ve Siyaset Rüzgarları. Efil Yayınevi, sf. 5 www.researchgate.net/publication/258446856

9 İbid., sf. 12

10 Selek Öz, C., Bulut, E. (2013). Mevsimlik Tarım İşçilerinin Türk Hukuk Sistemi İçerisindeki Yeri, ÇSGB Çalışma Dünyası Dergisi, 1(1)

11 Gürsel, İ. (2016). Çalışan Çocuk ve Gençlerin Korunması. İstanbul Üniversitesi Hukuk Fakültesi Mecmuası C.74, sf. 429

12 İbid., sf. 427

13 Aydın, F. (2014). Çalışma Mevzuatı İle İlgili Avrupa Birliği Direktifleri. Çalışma ve Sosyal Güvenlik Bakanlığı Yayın No: 11. www.csgb.gov.tr/media/2079/calismamevzuat%C4%B1_abd.pdf

14 İren, E. (2008). Avrupa Birliği İş Hukuk Yönergeleri Karşısında 4857 sayılı İş Kanunu’nun Durumu. Doktora Tezi – Ankara

15 BM Çocuk Haklarına Dair Sözleşmesi md.38; Avrupa Konseyi Gençlerin İşte Korunmasına dair 22 Haziran 1994 tarihli ve 94/33/EEC sayılı Yönergesi md. 1

16 6287 sayılı ve 30.03.2012 tarihli Kanun ile Milli Eğitim Temel Kanunu md.25’te yapılan değişiklik.

17 1739 sayılı 14.06.1973 tarihli Kanun

18 Bkz. www.alomaliye.com/2015/03/30/hazirlama-tamamlama-ve-temizleme-isleri/www.mevzuat.gov.tr/Metin.Aspx?MevzuatKod=7.5.5463&sourceXmlSearch=&MevzuatIliski=0

19 Avrupa Sosyal Haklar Komitesi Ocak 2012 humanrightscenter.bilgi.edu.tr/media/uploads/2015/05/08/Turkey2011_en.pdf

20 turkiyedecocuklar.org/#hangi-sektorde-calisiyorlar

21 Yiğit, B., Özal, Ç., Öztürk, M. (2017). Gezici Mevsimlik Tarım İşçileri İle Yerli Mevsimlik Tarım İşçilerinin Karşılaştırmalı Analizi: Isparta İli Örneği. Ünye İİBF Dergisi 1(2), sf.15

22 İbid.

23 Uyan, S., Erdoğan, E. (2017) Adana’da (Mevsimlik Gezici) Tarım İşçilerinin Çocuklarının Yaşam Koşullarının İyi Olma Hali Perspek-tifinden İyileştirilmesi Projesi Araştırma Sonuçları Özeti, Politika Alanları ve Uygulama Önerileri. İstanbul, sf.11

www.bilgi.edu.tr/site_media/uploads/files/2017/03/29/goc-merkezi_adana-da-mevsimlik-gezici-tar-m-ilerinin-ocuklar-ozet-ra-por.pdf

97

24 Uyan, S., Erdoğan, E. (2017) Adana’da (Mevsimlik Gezici) Tarım İşçilerinin Çocuklarının Yaşam Koşullarının İyi Olma Hali Perspek-tifinden İyileştirilmesi Projesi Araştırma Sonuçları Özeti, Politika Alanları ve Uygulama Önerileri. İstanbul, sf.4

www.bilgi.edu.tr/site_media/uploads/files/2017/03/29/goc-merkezi_adana-da-mevsimlik-gezici-tar-m-ilerinin-ocuklar-ozet-ra-por.pdf

25 Mevsimlik Gezici Tarım İşçiliği 2014 Araştırma Raporu. Hayata Destek Derneği (2014). buiscocukoyuncagidegil.com/Mevsim-lik-Gezici-Tarim-isciligi-2014-Arastirma-Raporu.pdf

26 t24.com.tr/haber/400-binden-fazla-tarim-iscisi-cocuk-var,442515

27 Gülçubuk, B. (2012). Tarımda Çocuk Emeği Sömürüsü ve Toplumsal Duyarlılık. Çalışma ve Toplum 22(2), sf.81

28 www.hurriyet.com.tr/16-yasindan-kucuk-cocuklarin-findik-hasadinda-c-40520548

29 Kablay, S. (2015). Mevsimlik ve Gezici – Geçici Çalışma: Çocuk İşçiler. Derleyen: Yücesan Özdemir, G. Rüzgara Karşı / Emek Sü-reçleri ve Karşı Hegemonya Arayışları. Ankara: Nota Bene Yayınları, sf.107

30 The report “Health Risks Faced by Children Working in Agricultural Production: The case of Citrus Fruit, Cotton and Hazelnut” was prepared to fill in this gap under the same project and simultaneously with the present report.

31 Mevsimlik Tarım Göçünden Etkilenen 6-14 Yaş Grubu Çocuklar İçin Temel Araştırma. (2013). Kalkınma Atölyesi (2. Baskı), sf.40

32 It is stated that these periods are not in compliance with Article 7.4 of the revised European Social Charter: Gürsel, İ. (2016). Çalışan Çocuk ve Gençlerin Korunması. İstanbul Üniversitesi Hukuk Fakültesi Mecmuası C.74, p. 428

33 Repealed by the Labour Code No. 1475 dated 01.09.1971.

34 Repealed by the Law No. 7033 dated 01.07.2017 on the Amendment of Some Laws and Law Decrees for Purposes of Industrial Growth and Support to Production.

35 Keskin, D. (2017). Hafta Tatili Kanunu Kaldırıldı, Çalışanların Hakkı Ne Olacak? Bianet (26.07.2017)




39 Yücel, R., Ömercioğlu, A. (2016). İş ve Borçalar Hukuku Temelinde Tarım Çalışanları ile İnsan Kaynakları Yönetimine İlişkin Kav-ramsal Bir Çalışma. Ankara Barosu Dergisi, 1, sf. 253

40 Boratav, K. (2004). Tarımsal Yapılar ve Kapitalizm (3.Baskı). İmge Yayınları, sf. 31

41 İbid., sf. 32

42 İbid., sf. 39

43 İbid., sf. 41

44 Tarımda İş Aracılığı Yönetmeliği md.12 (RG 27.05.2010 t. 27593 s.)


46 www.milliyet.com.tr/afsin-de-mevsimlik-tarim-isci-yevmiyeleri--yerelhaber-2737977/

47 www.muhasebetr.com/asgari-ucret/

48 TÜİK Haber Bülteni, 14.03.2018, Sayı: 27706

98

49 Karadeniz, O. (2011). Türkiye’de Atipik Çalışan Kadınlar ve Yaygın Sosyal Güvencesizlik. Çalışma ve Toplum Dergisi, 2, sf.83

50 TUİK Haber Bülteni 14.03.2018 Sayı: 27706

51 www.sivilsayfalar.org/2018/03/20/mevsimlik-tarim-iscilerinin-gunluk-ucretleri-artti-demek-yeterli-mi/



54 “... agricultural worker is not subject to Labour Code; therefore he cannot claim any compensation on the basis of this code...”, Yarg.9.HD., 30.9.1997, 6937/7425, Akyiğit, İş Kanunu, p.202. “It is understood that the employment of the claimant was in agricultural works. According to the Labour Code No. 1475 he is not entitled to severance pay. However, the workers can still ask for severance pay by bringing a suit to a labour court given that there is a provision of entitlement to severance pay in his service contract or in collective agreement that was acted...”, Yarg.9.HD., 9.9.1992, 2279/9385, Kamu-İş, p.25-26 (İşveren, C.XXXI. S.4, Ocak 1993, s.18); Zikreden: Uşan, M. (2003). Yargıtay Kararları Işığında İş Kanunu Açısından Tarım İşleri. Kamu-İş 7(2), p. 15

55 Bkz. Bu proje kapsamında ve bu rapor ile eş zamanlı olarak hazırlanmış, “Tarımsal Üretimde Çocuk İşçiliğinin Önlenmesine Yönelik Kurumsal Boşluk Analizi ve Öneriler Raporu”.


57 Aydın, K. (2012). Türkiye’de Kişisel Gelir Dağılımının Sosyo Ekonomik ve Demografik Belirleyicileri. Çalışma ve Toplum 1, sf.154


59 25.08.1999 t. 4447 sayılı Kanun md. 56 (RG 08.09.1999 – 23810)


61 İbid., sf.87

62 İbid.


64 İbid., sf.13

65 Özbekmekçi, Ş., Sahil, S. (2004). Mevsimlik Tarım İşçilerinin Sosyal, Ekonomik ve Barınma Sorunlarının Analizi. Gazi Ünv. Müh. Mim. Fak. Dergisi 19(3), sf. 266

66 TÜİK Haber Bülteni, 19.09.2016, Sayı: 21573

67 SGK İşyeri ve Sigortalılık İstatistikleri 2016

68 Lordoğlu, K., Çınar, S. (2011). Mevsimlik Tarım İşçileri: Marabadan Ücretli Fındık İşçiliğine. Uluslararası Sosyal Haklar Sempozyu-mu, sf. 419-449.

69 Görücü, İ., Akbıyık, N. (2010). Türkiye’de Mevsimlik Tarım İşçiliği: Sorunları ve Çözüm Önerileri. Hikmet Yurdu: Düşünce-Yorum Sosyal Bilimler Araştırma Dergisi(5), sf.189-219.


99

71 Karadeniz, O. (2006). Türkiye’de Çiftçilerin Sosyal Güvenliği ve Sosyal Güvenlik Reformunun Çiftçiler Üzerinde Olası Etkileri. DEÜ Sosyal Billimler Enstitüsü Dergisi 8(4), sf. 92

72 Karadeniz, O. (2006). Türkiye’de Çiftçilerin Sosyal Güvenliği ve Sosyal Güvenlik Reformunun Çiftçiler Üzerinde Olası Etkileri. DEÜ Sosyal Billimler Enstitüsü Dergisi 8(4), sf. 99

73 TBMM Mevsimlik Tarım İşçilerinin Sorunlarının Araştırılarak Alınması Gereken Önlemlerin Belirlenmesi Amacıyla Kurulan Meclis Araştırma Komisyonu Raporu Yasama Dönemi:24 Yasama Yılı:5 (Mart 2015), sf. 14

74 İbid., sf. 16-17

75 While it was fixed as 3 per cent when the law took effect in 2012, it was changed as 1 per cent by Article 20 of the Law No. 6552 dated 10/9/2014.

76 Kablay, S. (2015). Mevsimlik ve Gezici-Geçici Çalışma: Çocuk İşçiler. Derleyen: Yücesan Özdemir, G. Rüzgara Karşı / Emek Süreç-leri ve Karşı Hegemonya Arayışları. Ankara: Nota Bene Yayınları, sf.97

100

OVERALL EVALUATION AND CONCLUSION

4

101

Turkey followed the activities of the International La-bour Organization from the early years on and beca-me a State Party to many of its conventions. Some of these conventions are also transposed into domestic law. However, legislative arrangements pertaining to agriculture are far from safeguarding the rights of persons working in this sector.

Yet, agriculture stands as a sector where the exploi-tation of child labour is the most common. Gülçubuk (2012) describes this situation as follows:

“Throughout the world, agriculture is the sector where child workers are the most numerous. …Agriculture is one of the most hazardous sectors for children. The burden on the girl child is parti-cularly heavy. Working girls are often the invisible part of agricultural labour force and particularly disadvantaged since, besides working out in fiel-ds they are also occupied with household cho-res. Children’s entry into working life including in agriculture in the first place is an important social and political problem in Turkey and this problem is multi-dimensional. Poverty, low levels of edu-cation, demand for cheap labour, migration, lack of commitment, child abuse, invisibility of labour and unawareness further aggravate the dimensi-ons of the problem of unemployment.”1

Especially within the last 40 years many internatio-nal documents, action plans and projects have been drafted, developed and implemented to combat child labour including its worst form and to allevia-te poverty as its root cause. Unfortunately, desired outcomes and improvements could not be obtained.

Combat against the exploitation of child labour requ-ires sincere political will to eliminate its root causes. Hence recommendations made in this part of the re-port are arranged with respect to these root causes which are:

(1) Poverty, unemployment and demand for cheap labour

(2) Problems related to education

102

Therefore, priority actions should be;

Amending Article 55 of the Turkish Constitution so as to recognize the protection of the value of labour and income guarantee as a right.

And as corollary;

Modifying Article 39 in the Labour Code. By using criteria set in the European Social Charter, a principle must be adopted to raise minimum wage up to a minimum decent living standard.

4.2Recommendations Related to Education

Factors such as low school performance, unemp-loyment as a common phenomenon even for rela-tively educated population and tolerance shown to non-attendance to school by children of seasonal agricultural workers3 weaken the ties of children with their schools. A survey found that school days mis-sed by children of seasonal migrant agricultural wor-kers vary from 6-51 to 67 days in a school year.4 Ac-cording to another survey 50.2 per cent of children engaged in economic activities are out of school.5 As to supportive activities initiated for children when their family elders are out in work, their availability is limited in terms of both time and space and not as inclusive as they should be.

The system of education must be capable of iden-tifying factors that push children out of the system and making necessary interventions. The existing le-gislation on following children’s school attendance6 is not effective in eliminating the problem of poor attendance. Mainly, it is not of that nature to allow for interventions to eliminate the causes of poor at-tendance. Hence;

There is need to amend article 52 and subsequ-ent articles of the Law on Primary Education and Education so as to allow for the intervention of social services in order to investigate the causes of poor school attendance and to improve family skills needed to eliminate this problem.

(3) Problems related to working life and workers’ rights

While the main purpose of this report is to identify gaps in legislation and forward relevant suggestions, it further includes other recommendations in various problem areas in order to make clear the basis of suggestions related to legislation since this specific problem is also the cause of some problems in other areas as well.

4.1Recommendations Related to Poverty, Unemployment and Demand for Cheap Labour

Besides the poverty in general, agricultural workers in particular and small farmers constitute the most impoverished section of the society and this cycle of poverty cannot be broken even in full-time work. Given this, the first thing to be questioned is the sys-tem that works on the basis of cheap labour and ar-rangements supplementing this system.

The poverty of those working in agriculture stems from the fact that profits accruing from agricultural products go to some other hands. Boratav (2004) defines commercial profit as the “margin between prices paid to producers and prices paid by consu-mers excluding costs of transportation and storage.”2 In addition to this, “the profit of the trader emerges from the presence of two different prices: one paid to the producer by the trader and the second is the price paid by the consumer to the trader for a single commodity. When the producer appears before the trader as a consumer what he has sold and what he is going to buy are unequal in value and hence the exchange is unequal.” This is the point where the real tension exists. While value created by a mechanism operating against small farmers and agricultural workers goes to the trader as profit, it is impossible to keep children out of working life as their parents have to work and subsist on an income below po-verty line and in some cases close to starvation line.

103

An Agricultural Labour Code must be drafted to address, in an integrated manner, all relevant issues including the prevention of child labour and the rights of their parents to wage, working periods, leaves, etc. Until the enactment of this law, the rights and benefits of agricultural wor-kers such as working periods, leaves, additional payments and bonuses must be provided for by amending article 393 and other relevant articles in the Code of Obligations.

The system of social protection in agriculture must be strengthened. Short-term contracts must be accepted as fixed-term contracts and the scope of family benefits must be expanded so as to provide a sufficient standard of living including children’s education and other expenses. To en-sure this, the additional article 5 in in the Social Security and General Health Insurance Law No. 5510 and the Law No. 2925 on Social Security of Agricultural Workers must be amended. In doing this, there is need to develop a model that takes account of agricultural production processes and to safeguard it with necessary legislative arran-gement to cover workers in social security. Also needed is the possibility paying wages by met-hods such as bank and payment vouchers and including social security contributions in wages.

The condition of employing at least 50 workers existing in article 4 of the Labour Code must be removed to include agriculture in the inspection domain of labour inspectors. There must be ar-rangements allowing for regular and upon-comp-laint inspections.

The condition of representing a specific percen-tage of workers in the same trade must be remo-ved for facilitating the unionization of agricultural workers by introducing amendments to the Law No. 6356 on Trade Unions and Collective Bar-gaining.

A study should be conducted on production mo-dalities and the distribution of the profit along the production chain and it should be ensured that small farmers and agricultural workers are en-titled to the value of their labour through enact-ment of an Agricultural Labour Code.

Quality of education must be such that it strengt-hens the ties with school and learning of children in general and particularly those facing attendance and performance problems and quality education must be accessible to all children. It is therefore a problem of policy and implementation before any legislation.

In this context;

It is necessary to include a special section in the Fundamental Law on National Education for introducing mobile schools to which children of agricultural workers can attend, developing catch up education programmes for children who have missed school years and implementing alternati-ve programmes to develop and improve learning skills of children.

4.3Recommendations Related to Working Life and Workers’ Rights

The reservations to the Art. 2, 4, 5, 6, 7, 22 and 23 of the revised European Social Charter should be removed and the Collective Complaints Pro-cedure dated 1995 that entitles the unions and civil society organizations the right to collective complaints should be ratified.

Turkey must be a State Party, first of all, to the Convention No. 10 on Minimum Age in Agricultu-re dated 31 August 1923 and then to the Conven-tion No. 101 on Paid Leave in Agriculture dated 4 July 1952, Convention No. 129 on Work Inspection in Agriculture dated 25 June 1969 and Conven-tion No. 184 on Health and Safety in Agriculture dated 5 June 2001.

Given that employment in seasonal migrant agri-cultural works is considered as one of the worst forms of child labour, necessary amendments must be made in both Article 71 of the Labour Code and in the Regulation on Procedures and Principles Relating to the Employment of Child and Young Workers to set the minimum age as 18 in this branch.

104

Notes

1 Gülçubuk, B. (2012). Tarımda Çocuk Emeği Sömürüsü ve Toplumsal Duyarlılık. Çalışma ve Toplum 22(2), sf.892 Boratav, K. (2004). Tarımsal Yapılar ve Kapitalizm (3.Baskı). İmge Yayınları, sf. 433 Kablay, S. (2015). Mevsimlik ve Gezici – Geçici Çalışma: Çocuk İşçiler. Derleyen: Yücesan Özdemir, G. Rüzgara Karşı / Emek Sü-reçleri ve Karşı Hegemonya Arayışları. Ankara: Nota Bene Yayınları, sf.974 Mevsimlik Tarım Göçünden Etkilenen 6-14 Yaş Grubu Çocuklar İçin Temel Araştırma. (2013). Kalkınma Atölyesi (2. Baskı), sf.445 Dünyada, Türkiye’de ve Adana’da Çocuk İşçiliği: Nedir? Nasıl Çözülür? (2014). Adana, sf. 146 05.01.1961 tarih ve 222 sayılı İlköğretim ve Eğitim Kanunu md. 52 vd.7 Mevsimlik Tarım İşçiliği Çocuklar: Sorun Analizi ve Politika Önerileri. (2013). Ankara, sf.28

105

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Financial support to the Project for Reducing Legal and Institutional Gaps in Prevention of Child Labour in Seasonal Agriculture was provided by the MATRA Programme of the Embassy of Netherlands.

The responsibility for the content of this publication rests solely with the Development Workshop and does not reflect the views of the Embassy of Netherlands.

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